A Reparative Call to Change the Administrative Procedure Act
Historic preservation is fundamentally a policy-based endeavor, driven by governmental laws, regulations, and guidelines. And because of this basis, it’s also incredibly difficult, if not impossible, to make it more people-centered without some changes to state and federal administrative procedure acts.
The fact is that nearly three-quarters of all paid, professional work in historic preservation, in the US, exists because of local, state, and federal preservation policy (Wells 2018). Realistically, there is no unique local or state preservation policy, as these levels of government almost universally promulgate and duplicate federal preservation policy in their regulations (Avrami, Leo, and Sanchez 2018). To be sure, preservation policy, at all levels of government in the US, is federal preservation policy.
You’d think, then, that historic preservation scholarship would primarily be about its policies. This is not the case because most of this scholarship concerns architectural and social history (Wells 2021). Not that this latter scholarship lacks importance, but it does not actually address historic preservation directly, or in the words of Ned Kaufman (2019, 309), “the policies beneath the preservation enterprise, the assumptions that drive them, the forces that shape them, their impact on the world.”
Even preservation scholarship that is not centered in history problematically excludes government policy. A useful and popular example is “values-based” preservation, which was widely promulgated in publications by the Getty Conservation Institute at the turn of this century (Avrami, Mason, and Torre 2000; Torre 2002), and remain some of the most cited preservation publications, ever. While derivative of Lipe’s (1984) earlier research, they use social science and participatory meanings to lay claim to a better way of engaging in “preservation” and “conservation” that more broadly considers “a fuller range” of objective, technical, social, and cultural values. This is certainly a laudable goal, but the problem is that the authors of these Getty publications rarely, if ever, mention preservation policy directly, much less its specific elements (e.g., National Register, Word Heritage criteria). Even the Getty’s case studies, stemming from this work, while useful, specifically avoid contexts outside of historic site management and interpretation. Even today, in the world of preservation values research, it is quite literally as if specific governmental preservation laws, regulations, and guidelines do not exist. Preservation, it would seem, in the eyes of these authors, is apparently only an interpretive endeavor, outside of the influence of government.
Critical heritage studies scholarship is equally guilty of ignoring governmental policy. Most of these scholars also ignore specific laws, regulations, and guidelines, germane to the countries in which their work is situated, even if doctrines related to World Heritage are being critiqued. Again, for these scholars, heritage conservation is mostly about museum studies and site interpretation. Where policies arise, it is consistently in the frame of the World Heritage convention and site management, not in how state parties actually ground, create, and promulgate their policies related to World Heritage sites.
Realistically, if historic preservation scholarship were to accurately be reflective of the field’s practice, most scholars would be using research methods more commonly found in public policy, public administration, and the legal discipline. Yet, outside of the recent work of scholars such as Erica Avrami, Andrea Roberts, and Ashley Adams, among a handful of others, there is no analytical preservation policy research, period. When preservation policy is discussed—i.e., a specific focus on its governmental laws, regulations, and guidelines—the approach is purely descriptive and fails to question the normative position of the underlying values in these policies. Where there is an analytical process, it nearly always is based on whether or not preservation laws and regulations are constitutional, including what levels of government can regulate private property and when takings occur. Other analytical examples, such as to whether or not the values inherent in the National Register of Historic Places regulation are congruent with the contemporary public’s values, don’t exist in this literature.
With the exception of the work of yours truly and Lucas Lixinski (Wells and Lixinski 2016, 2017), not a single preservation scholar has tried to tackle the core of the legitimacy of preservation policy, as it relates to values: administrative law. Even more shocking is that most preservation law courses in preservation degree programs do not teach administrative law even though historic preservation policy is fundamentally implemented through administrative law; nor do the commonly used preservation law texts that are available go beyond a few cursory mentions of administrative law (and the associated administrative procedure acts at the federal and state levels).
At this point, my dear reader, I should pause because I have made an intellectual leap that deserves explanation, and that is the assumption of the relationship between values-centered preservation and administrative law. Let me explain.
You see, Lucas Lixinski and I wrote a two-part investigation (ibid.) on how values-centered preservation, and more broadly, people-centered preservation, could be incorporated within the existing regulatory framework for historic preservation. Key to this innovation is the need for what we called an “adaptive regulatory framework” in which the values and meanings for historic places, held by the public, could dynamically influence long-accepted regulatory criteria for significance and historical integrity (authenticity). We hit a dead-end when we realized that this simply could not be done because of requirements in administrative law, at the state and federal levels, about the need for “finality” and a linear, rather than cyclical, process.
The environmental conservation field has a much more robust exploration of this problem through the lens of “adaptive management”; like Lixinski and I, Craig et al. (2017) came to a similar conclusion about the way in which administrative law (and administrative procedure acts) made it impossible to implement. Similar to our adaptive regulatory framework, adaptive management is based on an iterative process in which the values that undergird decision-making are constantly in flux, subject to change. What I present here is a very simplified version of what you can find in my co-authored papers as well as Craig et al. (2017).
In the way administrative law works, currently, at the state and federal levels, there is a required deliberative phase, when an agency is considering a new or revised regulation. This phase requires some form of public participation (often public comments) in order to influence the final regulation. Once the deliberative phase is complete, the agency then makes decisions to finalize the regulation and the public is then subject to its requirements. Judicial review is available once the regulation is finalized. The agency then moves on to other work and rarely monitors the regulation or assesses its effectiveness. For all intents and purposes, the regulation is ossified.
In an adaptive administrative law process, there is a similar deliberative phase at the beginning, but the decision-making process is constantly ongoing based on inputs that monitor and then assess the results; based on this assessment, the decisions on what constitutes the regulation are dynamic, and not fixed. This is problematic, however, in that existing administrative procedure acts require “finality,” which is never achieved in this process. Without finality, judicial review, as stipulated in administrative procedure acts, cannot be performed in the same way.
Because existing administrative procedure acts cannot accommodate dynamic processes, Craig et al. (2017) make the recommendation that the federal and state administrative procedure acts need to be amended. Otherwise, adaptive management, and by association, an adaptive regulatory framework, cannot be implemented. Pragmatically, what this means is that it is simply not possible for existing preservation policy in most countries, and certainly in the US, to accommodate the valued-centered preservation or people-centered preservation paradigms currently being held as goals in the historic preservation field.
But, let’s assume that we could implement an adaptive regulatory framework at the local level, within a preservation ordinance. What might this look like?
Currently, the values that guide significance, in relation to designating properties, and historical integrity, in relation to retaining the authenticity of designated properties, are fixed in the ordinance: they do not and cannot change without going through the political and bureaucratical process of rule-making. In most cases, across the US, this equates to using the same historical and aesthetic values as are found in federal preservation policy—the National Register of Historic Places—and the same Venice Charter-derived values for authenticity found in the Secretary of the Interior’s Standards.
But, let’s say that the state in which this local municipality is based changes its administrative procedure act to allow for a dynamic regulatory framework. What could a preservation ordinance look like under this altered paradigm?
Rather than enumerate specific values related to significance and authenticity, the regulation could state that the values guiding these principles would be dynamically assessed, on a case-by-case basis, when changes to properties are being made. This process could involve traditional public input methods, but more realistically, could be based on social science methods that gather public sentiment (e.g., surveys, interviews) or even action research. I’ve written about how this might actually look like in a hypothetical paper I wrote on “Human Environment Conservation in 2066.”
The key takeaway from these erudite arguments is that people-centered change in historic preservation practice, included needed changes around diversity, inclusion, equity, and social justice, are unlikely to happen until more scholars and practitioners set their intellects and advocacy on changing preservation policy here in the US and abroad.
But, until someone can explain how a “people-centered” regulation that supports historic preservation can be implemented without a dynamic consideration of contemporary sociocultural values, the issue I’ve described will remain a highly significant one for the field. (As a side note, there is broad recognition of the problems in the 70-year old Administrative Procedures Act; in addition to the issue described in this essay, there are many other changes needed to bring this law into the twenty-first century; the Yale Journal of Regulation has a special issue on this topic.) And, until the various administrative procedure acts can be updated to allow for dynamic processes, any changes to preservation regulations will continually be token gestures toward reparative social justice. But, the first step is for preservation practitioners and scholars to begin to talk about this issue and increase awareness. Will you join me?
Works cited
Avrami, E., Mason, R., & Torre, M. (2000). Values and heritage conservation. Los Angeles: Getty Conservation Institute.
Avrami, E., Leo, C.-N., & Sanchez, A. S. (2018). Confronting exclusion: Redefining the intended outcomes of historic preservation. Change Over Time: International Journal of Conservation and the Built Environment, 8(1), 102–120.
Craig, R., Ruhl, J.B., Brown, E., Williams, B. (2017). A proposal for amending administrative law to facilitate adaptive management. Environmental Research Letters 12(7). http://dx.doi.org/10.1088/1748-9326/aa7037
Kaufman, N. (2019). Resistance to research: Diagnosis and treatment of a disciplinary ailment. In J. C. Wells & B. L. Stiefel (Eds.), Human-centered built environment heritage preservation: Theory and evidence-based practice (pp. 309–316). Routledge.
Lipe, W. D. (1984). Value and meaning in cultural resources. In H. Cleere (Ed.), Approaches to the archaeological heritage (pp. 1-11). Cambridge: Cambridge University Press.
Torre, M. (2002). Assessing the values of heritage conservation. Los Angeles: Getty Conservation Institute.
Wells, J. C. (2018). Challenging the assumption about a direct relationship between historic preservation and architecture in the United States. Frontiers of Architectural Research, 7(4), 455–464.
Wells, J. C. (2021). Does intra-disciplinary historic preservation scholarship address the exigent issues of practice? Exploring the character and impact of preservation knowledge production in relation to critical heritage studies, equity, and social justice. International Journal of Heritage Studies, 27(5), 449–469. https://doi.org/10.1080/13527258.2020.1799059
Wells, J. C., & Lixinski, L. (2016). Heritage values and legal rules: Identification and treatment of the historic environment via an adaptive regulatory framework: Part 1. Journal of Cultural Heritage Management and Sustainable Development, 6(3), 345–364.
Wells, J. C., & Lixinski, L. (2017). Heritage values and legal rules: Identification and treatment of the historic environment via an adaptive regulatory framework: Part 2. Journal of Cultural Heritage Management and Sustainable Development, 7(3), 345–363.