Advisory Council on Historic Preservation’s Post

The ACHP Office of General Counsel today issued a statement on the U.S. Supreme Court decision in the case of Loper Bright Enters. v. Raimondo, noting the Section 106 review process under 36 C.F.R. part 800, and the ACHP’s role overseeing it, remain unchanged. Read the complete statement here: https://lnkd.in/eQJV92uu

ACHP Legal Opinion on Loper Decision

ACHP Legal Opinion on Loper Decision

achp.gov

Ira Beckerman

Historic Preservation and archaeology advocate

3mo

I would agree that the law and regulations are not going to be changed because of Loper. However, two of the most critical phrases in the regulations - "area of potential effect" and "undertaking" do often rely on agency interpretation. I would expect a gusher of lawsuits seeking to move interpretation of these terms to (friendly) judges, rather than the agency experts or the ACHP. I think you could also expect push-back on the phrase "traditional cultural property." And do not think Section 106 exists in a vacuum. APE and undertaking are greatly influenced by NEPA, which also relied heavily on agency experts. The most honest reaction to Loper as functionally applied to Section 106 is probably "I haven't a clue,", since many battles will reach the Supreme Court, a court which has proven it does not care about stare decisis.

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