The Trump administration is eyeing a workaround for one of the procedural hurdles facing its proposed 250-foot arch: weakening federal oversight of all construction projects affecting historic sites.
Critics say that the move would not only clear a path for President Trump's controversial projects in D.C., but also endanger the preservation of historic and cultural places across the United States.
"Every American who has any place in their heart that is historic or culturally significant to them should be concerned about this attempt to gut historic preservation protections," said Greg Werkheiser, founding partner at the law firm Cultural Heritage Partners.
The National Register of Historic Places contains over 100,000 properties, encompassing more than 1.8 million buildings, structures, sites, objects and districts. They take many forms, from a house to a burial ground, a shipwreck to a landscape, a single tree to an entire neighborhood.
"It's the thing that defines America," Werkheiser said. "The places that you go where your family has an attachment over generations … There are millions of these sites in this country, and all of them are made less protected by this effort by the Trump administration."
The White House and the Department of the Interior did not respond to NPR's request for comment.
Part of the National Historic Preservation Act of 1966, known as Section 106, requires federal agencies to evaluate how new construction projects would affect historic places.
Under the Section 106 review process, the federal agency overseeing a project must invite interested parties — like preservation groups and local and tribal governments — to weigh in. Currently, agencies are required to consider whether the project would cause "adverse effects" to a historic property and, if so, explore ways to "avoid, minimize, or mitigate" those harms.
The Advisory Council on Historic Preservation, the federal agency responsible for overseeing the Section 106 review process, is packed with Trump appointees. And now, 60 years after the law took effect, the council wants to water it down drastically.
"Because President Trump controls 21 of the 24 members of the Advisory Council on Historic Preservation, it's very likely that they will proceed with doing what the administration wants for them to do," said Sara Bronin, who served as the Senate-confirmed chair of the advisory council under President Biden.
Bronin is the most recent chair of the council, as that position is currently vacant. President Trump has yet to nominate a new one, instead appointing its vice chair, Travis Voyles, to serve in an acting capacity.
Last week, Voyles sent an email to council members asking them to vote on proposed revisions to the wording of Section 106. According to draft language obtained by NPR, those changes include redefining what kinds of properties can be considered historic in the first place, making public comment on new projects optional and removing the requirement to consult with Native American tribes.
"What it means is that the federal government, in its own discretion, can decide whether — if ever — to tell an American community that it's about to do a major project that could harm or destroy a historic resource," Werkheiser said. "The public will be completely cut out of any conversation around the future of places that matter to them in this country."
Council members were given just one week to cast their votes, via email, by the end of Friday. The revision would need to clear several more steps of the federal rulemaking process, including a roughly 30-day public comment period, before it can take effect.
Werkheiser called the vote a "foregone conclusion," but said it sets the stage for a legal fight later.
"As sure as the sun rises and sets over Washington, D.C., there will be litigation in an attempt to stop this absurd gutting of protections of American history," he said.
Why does the Trump administration want these changes?
After World War II, an era of urban renewal and federal highway construction destroyed high-profile buildings like New York City's Penn Station, and devastated many historically Black neighborhoods.
The advisory council's memo describes that period as "one of the greatest, yet most destructive building streaks in American history." It prompted public outrage, and resulted in Congress passing the National Historic Preservation Act in 1966.
"Small wonder, then, that Congress enacted a requirement that all Federal agencies take into account historic preservation concerns in future Federal actions," the memo reads. "Consideration, however, was not the same thing as a mandate that historic preservation concerns trump all others."
The memo says the current regulations under Section 106 "create confusion and uncertainty for both the public and regulated entities and contribute to agency delays." It cites a 2019 study that found consultation can take nearly seven years in extreme cases.
And it proposes revisions that it says would help "agencies strike a more appropriate balance between evaluating effects on historic properties and advancing critical federal projects."
The changes would limit the type and number of historic properties that will receive protection, ruling out "significant landscape features" like the Grand Canyon. Bronin says it would also change the type of actions that will be reviewed in the first place, with an "alarming number of exemptions," including for federally funded projects carried out by local authorities.
"Things like state highway widening, which in the past have been highly destructive of historic places, including not only whole neighborhoods but also burial sites … won't [undergo Section 106 review] under the new rules," she said.
The new wording would also narrow what is considered an "adverse effect" to anything that is directly and foreseeably tied to the project (as opposed to indirect or cumulative effects). And it allows agencies to condense much of the process into a written report, which they would then share with third parties for review instead of consulting them along the way.
"This change in consultation will have the effect of not surfacing the location, significance and effects on historic sites, meaning that they could have the potential to be destroyed at scale," she said.
The new wording would also remove requirements for public comment, eliminating the phrase: "views of the public are essential to informed Federal decisionmaking."
That stands out to Charles Birnbaum, the founding president and CEO of The Cultural Landscape Foundation, an education and advocacy organization based in D.C. He told NPR over email that he sees similarities between the revised law and the reason it exists in the first place.
"Consent of the governed is being replaced with my way or the highway," he wrote. "This is the same haughty, retrograde, and myopic attitude that resulted in urban renewal, which decimated cities with highways and destroyed countless neighborhoods nationwide, especially underserved communities."
The Cultural Landscape Foundation has already sued over the administration's repainting of the Lincoln Memorial Reflecting Pool, saying the National Park Service improperly used — by its own words — a "streamlined" Section 106 review. A judge has not yet ruled in the case, as the pool saga continues to unfold.
What happens next?
Simplifying the Section 106 review process could help to fast-track some of the Trump administration's renovation projects in D.C.
The requirement for third-party consultation — which many historic and cultural preservation groups say is happening too fast or not at all — has been one of the few hurdles in the already fast-moving approval process for Trump's arch.
Bronin says under the proposed new language, near-constant construction noise near Arlington National Cemetery would not be considered an adverse effect, and the 250-foot arch's disruption of historic views would not be considered under the review process.
"Although I would encourage listeners to not simply focus on D.C.'s iconic landmarks, because this proposal would have far-reaching effects, the proposal for the arch in front of Arlington Cemetery is an excellent example of what's at stake with these changes," Bronin said.
The National Trust for Historic Preservation, the National Association of Tribal Historic Preservation Officers and the National Conference of State Historic Preservation Officers have all issued statements opposing the Section 106 changes, taking issue both with the substance and the brief voting timeline. They each have representatives on the advisory council board.
Elizabeth Merrit, deputy general counsel for the National Trust for Historic Preservation, wrote in an open letter that she will vote against the proposed changes, calling them "likely to cause
widespread chaos and confusion, and … curtail the consultation process that has led to thousands of win-win outcomes around the country."
Werkheiser agreed that the proposal would be "terrible for developers," who want predictability and information early on to avoid delays and issues down the road. He said that's why the existing Section 106 process generally works so well. Trying to speed it up by even a few days, he said, would be "a losing trade for America in the long-term."
"Folks who complain about the relatively little time it takes to pause in front of a massive development project and say, 'Are we destroying something that can never be replaced?' I think those folks need to ask themselves, what legacy are they handing to their children and their grandchildren?" he said.
Both Werkheiser and Bronin encouraged people who oppose these changes to speak up not only during the public comment period, but to their legislators directly.
"As chair, I saw the topic of historic preservation as a bipartisan issue, and one that unites people who care about their communities, whether they're in red states or blue states," Bronin said. "I think that the public comment on the regulations will really help to send a powerful message that we care about our historic places and we don't want them to be destroyed."
Congress could potentially take action, including passing legislation to strengthen Section 106.
Democrats on the Senate Natural Resources Committee released a statement this week opposing the changes. They urged the council to "go back to the drawing board and work directly with Tribes and states on a new proposal that actually improves the consultation process without undermining the rights and voices of those most directly affected."
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