The National Historic Preservation Act (NHPA), 54 U.S.C. §§ 300101–7108, which addresses the preservation of historic properties, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370h, which addresses the environment more generally, both dictate the kinds of information federal agencies should consider before making decisions about projects that receive appreciable federal funding or occur on public lands. The statutes were passed within a few years of each other but have not received the same attention in federal courts. The greater frequency with which NEPA is litigated has produced a richer, more developed body of case law relative to the NHPA. The Supreme Court’s early decisions interpreting NEPA, recently reiterated in its Seven County Infrastructure Coalition v. Eagle County decision, established that the obligations imposed on federal agencies under the statute are “purely procedural.” 605 U.S. 168, 173 (2025). In Seven County, the Supreme Court again explained that because NEPA claims must be brought under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551–559, courts must be deferential when reviewing an agency’s analysis of environmental impacts. The Court reprimanded lower courts for straying from this principle; by failing to give the requisite degree of deference to agency decision-making, it explained, lower courts had enabled project opponents to turn NEPA into a bludgeon to block or delay vitally needed infrastructure projects.
In recent years, federal agencies also have increasingly faced litigation brought by project opponents challenging agency permits and approvals for alleged failures to comply with the NHPA’s section 106, the provision that governs consultation over impacts to historic properties (including tribal cultural properties). As with NEPA, claims under NHPA section 106 that an agency inadequately considered or consulted about such impacts must be brought under the APA. Although the Supreme Court has not considered the NHPA, federal courts of appeals and district courts have largely interpreted its consultation requirement, like NEPA’s requirement to consider environmental impacts, to be solely procedural. On occasion, however, federal agencies and courts have interpreted the statute to impose substantive obligations, like a duty to mitigate impacts to historic properties. See, e.g., Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 554 (8th Cir. 2003) (suggesting that the agency must either adopt the preservation agreement or “develop measures to ‘avoid, minimize, or mitigate’ adverse effects and then bind itself to these measures in a record of decision”). Would the Supreme Court, one might ask, also find a “course correction” warranted for judicial review of NHPA claims?
Read “NHPA Caselaw Needs a “Course Correction”—and NEPA Caselaw Can Help,” authored by Stacey Bosshardt and published by the American Bar Association: Section of Environment, Energy, and Resources. (Subscription)
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