How US law is the cause of social justice issues in historic preservation practice

Social justice issues come in many forms, including the disproportionate impact that the Covid-19 virus and police brutality have had on African American populations. The law can be both a friend, and often a foe, for achieving justice. In the case of police brutality, qualified immunity gives police immense discretionary power to engage in behavior that would otherwise be patently illegal for ordinary citizens. In the case of historic buildings and places, we have the Administrative Procedures Act (APA) (US federal law, usually mirrored at the state level) that also helps to sustain social injustice. Unfortunately, this association between the APA and social justice is often not discussed, especially in the realm of cultural resources.

If you’re not aware of the APA and administrative law, in general, they defer much of the power to interpret and apply the law to federal, state, and local government employees. The US Congress (or equivalent elected bodies at state or local levels) make a law, but more often than not, the actual way that the law is implemented is created in a statute (i.e., a regulation) by unelected agency staff. And these staff people are given a great degree of authority, through long established case law, to interpret their own regulation. In sum, this means that if you want to sue an agency because they didn’t follow their own regulation, good luck, because judges are overwhelmingly going to side with the agency (again, based on case law).

An example of administrative laws that help to foster an environment of social injustice are the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). More specifically, the injustice relates to environmental impact assessments (EIAs) and Section 106 review, respectively, as defined in their implementing regulations (40 CFR 1500-1508 and 36 CFR 800).

Federal agencies are allowed to offload their responsibilities to conduct EIAs and Section 106 to the private sector. In effect, developers who often want there to be no findings of adverse effects to the environment or to historic buildings or places are directly paying the people who are doing these reviews. And, for those professionals who do these reviews, they are often faced with an impossible ethical dilemma: do what’s right for the public and make a finding of a significant impact, or use the wiggle room in the EIAs and Section 106 process to limit public participation and consultation (make the process opaque) to help assure that you make a finding in your client’s interest and you get paid. Anyone see a conflict of interest here? You should. (For reference, Thomas King has authored a long list of resources on these topics.)

For all of the self-congratulatory work that the Council on Environmental Quality (CEQ) and the Advisory Council on Historic Preservation (ACHP) do to promote their success in saving the environment and historic places, both entities seem to have little interest in revealing the thousands of failures where the public’s interest has been ignored in deference to quick procedures, happy developers, and avoiding political controversy. To wit: both the CEQ and the ACHP have done very little to help members of the public determine if they might be impacted by a development or other undertakings that may damage historic resources or the environment. And, if people discover that such an undertaking might impact them, finding out how to ask to be a consulting party to Section 106 or to know if a public meeting is happening under NEPA is far from easy. To put it bluntly, if fewer people express dissent, then the project gets rubber stamped more quickly — there is, therefore, a built-in disincentive to keep these processes transparent. In other words, because of the extreme process-based focus on NEPA and Section 106, keeping the process obscure benefits developers and agencies by assuring better predictability.

To be clear, I am not making the charge that government agencies willfully engage in acts in which staff knowingly create social injustice issues. Most people want to do the right thing, but the culture inside the CEQ, ACHS, and state historic preservation offices (especially in our current political climate) makes it very difficult for staff or leaders to speak up on these issues without fear or the possibility of retribution. In other words, employees are rewarded for doing their job (per the regs) and not rocking the boat. Or, more critically, as Jack Elliott, Jr. has found, sometimes these employees, in bringing up a scope that is not minutely ingrained in a reg, are told, “preservationists are not paid to think.” Unfortunately, in this context, “thinkers” are sometimes perceived to be trouble-makers rather than social justice advocates.

That these problems create a profound social justice issue should not be surprising. Those of us who work and teach in historic preservation need to be both more aware of these issues and also respectfully, but affirmatively, pushing for change.

Rather than discussing these issues abstractly, what do social justice issues in NEPA and Section 106 look like? Here are a few examples:

Absaloka Mine Expansion (Crow Reservation in South Central Montana)

Tongue River Railroad Expansion (Northern Cheyenne Reservation in Southeast Montana)

The Dakota Access Pipeline Project

Talbot Avenue Bridge (Silver Spring, Maryland)

Big Four Public Housing (New Orleans)

Three ideas to address social justice issues in law and historic preservation

  1. Environmental review requirements (e.g., Section 106 review, NEPA) should be amended to remove the conflict of interest inherent in developers paying CRM/preservation professionals to perform environmental review. Why can’t the federal government collect these fees en masse — i.e., the developer directly pays the fee to the government — and then the federal government pays CRM professionals?
  2. “Law” courses in historic preservation and CRM programs should provide students with case studies of failed and unjust Section 106 and NEPA reviews. Students would then be responsible for identifying the problems and suggesting ways to avoid them in the first place. Thus, when these students enter the workforce, their more enlightened views on social justice might start to make a difference in how the regulations are implemented. (I credit Thomas King with originally suggesting this idea.)
  3. The Council on Environmental Quality and the Advisory Council on Historic Preservation should create a nationwide database of all environmental review projects in the country, accessible to the public. The public should be able to locate the projects using a map-based (GIS) interface or by searching on keywords. All public documents should be made available by all applicable state and federal agencies as well as private contractors (e.g., CRM professionals) producing work for these agencies. Instructions for how the public could participate/comment on these should be provided, relevant to each project.

Some last thoughts

Perhaps of most concern to me, as an academic, is how few scholars seem to be interested in exploring the social justice issues created in historic preservation and the regulatory environment. Literature on this subject is very, very minimal. Why I applaud my colleagues in critical heritage studies, work in this field also needs to focus more on the regulatory environment. Or to put it in another sense, if 75% of the historic preservation field (see here for more details) is driven by rules and regulations, why is there almost no literature on this topic? (See here for a very important exception.) Doesn’t this apparent lack of interest embody another social justice issue, as well?

4 thoughts on “How US law is the cause of social justice issues in historic preservation practice

  1. Tom King

    Small correction: a regulation is not a statute. A law is a statute; a regulation is a regulation. And it should be noted that in theory, neither the NEPA nor 106 regulations permit agencies to offload their review responsibilities on project proponents; the NEPA regulations include language that in theory precludes doing so (This is one of the provisions the Trump administration wants to remove). In practice, however, agencies DO offload, while pretending not to, and courts ARE (understandably, I think) deferential to agency interpretations. And in recent years, neither the Council on Environmental Quality nor the Advisory Council on Historic Preservation has been exactly a junkhouse dog when it comes insisting that agencies do their jobs under NEPA and NHPA with an eye toward social justice.

    • Jeremy Wells

      Good point as I can see my language is confusing. While a statute and regulation certainly hold the same legal authority, the reg is of course authorized in the statute by an elected body and then the reg (written by staff) is included in the federal or state code. So, technically, it’s not the statute that’s the big issue, it’s the regulation as written as part of this code. Very interesting point you make about how agencies are technically not supposed to be offloading their responsibilities to the private sector!

  2. Tom King

    Oh — and US law is hardly THE cause of social justice issues in historic preservation. It’s A cause, but there are others, including the belief systems and ethnic/social statuses of those who write and interpret the laws and regs and promulgate guidelines like the SOI standards.

    • Jeremy Wells

      Well, again, not really the law per se, but the regulation (authorized by the law). Sounds like we might be engaging in some semantics here. The basis of my argument is that these regs cause social justice issues, but they certainly didn’t start them. There are definitely more deep and systemic issues — as you’ve mentioned — that became or influenced the reg and are now perpetuated in the reg.

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