Background - News & Events (Landing) 2016

Rulemaking Run Amok at the Advsiory Council on Historic Preservation

November 2000

Co-Authors: Edward M. Green and Donald J. Kochan.

A whirlwind of regulatory activity has blown out of the Advisory Council on Historic Preservation ("Council") in the past six months regarding regulations governing federal agency responsibilities to take "into account" . the effects on historic properties from federal undertakings Yet every one of the Council's recent efforts has had only one intent - maintain the status quo in substance (while attempting to cure the procedural errors of the past).

The Timeline

The saga began nearly seven years ago when the Council first proposed revising its regulations governing historic preservation consultation responsibilities under § 106 of the National Historic Preservation Act ("NHPA"). The six-year rulemaking process - which generated enormous controversy, including congressional oversight hearings, corrective legislation, and substantial oversight by the Office of Management and Budget - culminated in promulgation of new § 106 regulations in May 1999.

Those regulations created a complicated regulatory thicket that imposed extensive and costly duties on federal agencies and private sector entities (such as mining companies) whenever they become involved in "federal undertakings," a broadly defined term that includes a wide array of federal agency actions such as review of plans of operations or issuance of permits. Under the guise of "consultation," the Council's regulations often cause federal agencies and state historic preservation officers ("SHPOs") to impose mitigation requirements and require that companies commission studies and inventories of historic resources across extensive areas surrounding proposed projects before a federal agency may approve proposed action. These requirements are time-consuming and costly, often thwarting projects altogether.

On February 15, 2000, the National Mining Association ("NMA") brought suit challenging the May 1999 regulations for violations of the U.S. Constitution's Appointments Clause, the Administrative Procedure Act ("APA"), and the NHPA. Among their many legal shortcomings, the regulations were developed and promulgated with the significant participation of two members of the ACHP who were not appointed by the President of the United States - the Chairman of the National Trust for Historic Preservation, and the President of the National Conference of State Historic Preservation Officers. Indeed, the Chairman of the National Trust actually chaired the Council's Special Regulations Task Force. Implementation of the regulations also involves participation by those very same two members. NMA has argued that, under the Appointments Clause of Article II of the Constitution, such significant federal authority cannot be exercised by individuals not appointed to their offices according to the procedures prescribed in that Clause.

To "cure" its constitutional and statutory violations, the Council embarked on a strange journey. On June 23, 2000, the Council, with the two unappointed members voluntarily recusing themselves, took two actions, neither of which was announced to the public in advance, as is required by the APA. First, by a 16-0 vote, the Council re-adopted the existing May 1999 rules. The, by another 16-0 vote, the Council decided to proceed with a new notice of proposed rulemaking in which it would re-promulgate verbatim those very same existing rules. That was published in the FEDERAL REGISTER on July 11, 2000, and the public comment period closed on August 31, 2000.

Just six days after the comment period closed, however, the Council voted to suspend the May 1999 regulations and, instead, adopt them as "guidelines" that "would not have the binding legal effect of a rule" but "would specify a reasonable procedure for participants in the Section 106 process." This action, too, was taken without honoring the APA requirements for notice to the public. Again, the Council was apparently attempting to moot the NMA suit. Notice of that proposal was published on September 15, 2000. The September 2000 proposal creates confusion about what role the "guidelines" are expected to play in § 106 consultations, and makes us whether the Council intends any true difference between a legal regime governed by the May 1999 regulations as regulations versus one governed by those same provisions as mere guidelines. On October 30, 2000, the public comment period on the suspension and adoption as guidelines proposals closed.

Remarkably, at the time of this writing, the Council fully expects to vote on the July 2000 proposal and re-promulgate the May 1999 regulations as regulations on November 17, 2000. It even stated so in the September 2000 notice of proposed suspension and adoption as guidelines. It is anyone's guess when, if at all, the Council expects to consider the suspension/guidelines proposals that would, theoretically, be mooted by the intended vote on re-promulgation on November 17.

This review of the Council's activities reveals the oddity of its procedures, and calls into question the sincerity of its proposals, its attention to reasoned decisionmaking, and its consideration of comments. These multiple proposals, re-proposals, and declared intentions, on their face, appear to exhibit an ongoing pattern of arbitrary and capricious behavior in disregard of the Council's limited authority and in complete disregard of the APA. The Council cannot cure the procedural or substantive flaws in its May 1999 regulations through procedural gamesmanship. Ironically, that "cure" only compounds the legal defects of the Council's actions.

No Matter the Name, the Flaws Remain

Besides the procedural deficiencies just discussed, these rules have substantive problems as well. They create a role for the Council that is far beyond its limited advisory authority under the NHPA. While the flaws are too numerous to discuss here in full, some of the most significant problems warrant mention:

First, two members of the Council - the Chairman of the National Trust for Historic Preservation and the President of the National Conference of State Historic Preservation Officers - are placed in those posts without appointment by the President. In Buckley v. Valeo, the Supreme Court observed that "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,' and must, therefore, be appointed in the manner prescribed by [the Appointments Clause]." Notably, the Council was warned by the Department of Justice ("DOJ") that the Constitution prohibits these two members from participating in Council rulemaking activities when the Council proposed to revise its § 106 regulations as far back as 1983. Yet, as noted above, these two nonappointed members of the Council participated intimately in the promulgation of the May 1999 regulations.

Second, the Council simply does not have the power to reconstitute itself, shift seats, and then rubber-stamp regulations that were developed through a constitutionally infirm process spanning over six years. Certainly if a court were to invalidate the existing rules and remand them to the Council, it would be arbitrary and capricious for the Council to re-promulgate the same rules summarily, immediately following the remand. Yet, in effect, that appears to be what the Council is doing. As DOJ explained, the Appointments Clause prohibits the two non-presidential appointees from participating "in any Council activities relating to the promulgation of regulations under [NHPA] § 211." Moreover, the D.C. Circuit has explained that an agency "cannot remedy a deficiency in one regulation by promulgating a new rule, equally defective for the same or other reasons."

Third, regardless of whether the procedural infirmities infecting each identical issuance of the May 1999 regulations, each and every iteration of the rules asserts a level of power well beyond the Council's statutory authority. The NHPA states that the Council's responsibilities are to "advise," "encourage," "recommend," "review," "inform," and "educate". Nowhere in the NHPA do the words "mandate," "require," "direct" or any other such obligatory words appear. The Council is, in name and substance, and advisory body. Yet, the May 1999 regulations use "shall" over 200 times, mandating specific actions by federal agencies, state historic preservation officers, private entities and others.

These mandates are causing, and will continue to cause, significant delays and increased costs in mining and other projects while doing little to advance the actual preservation of historic properties. In fact, due to the Council's unlawful regulations, a project need not even affect a property that has been officially listed in the National Register of Historic Places or officially deemed eligible for such listing before the applicant gets dragged into § 106 consultation. Instead, individual bureaucrats can make unilateral decisions regarding whether they believe a property should be eligible for the National Register and, as a consequence, impose consultation requirements and exact action from project applicants. (Indeed, the Council's regulations grant this "identification" authority even for properties already officially rejected for listing or eligible for listing in the National Register.) The May 1999 regulations and their latest incarnations are thus ultra vires. As a congressional report explained in 1995: "The Council has no authority to unilaterally alter Federal actions that will affect historic properties nor [can] it impose solutions on non-Federal parties. Its function [is] purely advisory."


Throughout the past few months, the Council has received scores of comments identifying these and other flaws and encouraging the Council to start its rulemaking anew - this time complying with all laws, rather than attempting procedural fencing through a song-and-dance routine of re-adoption/re-proposal/suspension/ adoption-as-guidelines/re-promulgation. Because the Council does not appear to be interested in heeding such advice, it will continue to be dogged by the NMA suit, and new legal challenges will likely be available to adversely affected parties.

Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922