An obscure 1966 law -- the National Historic Preservation Act (NHPA) -- burdens critical infrastructure across the country (energy projects, transportation, housing, etc).
During my decade at DOJ, I litigated several NHPA cases and saw its unintended consequences up close.
Now, I’ve written a 50-page report about how the law works, how it doesn’t, and promising avenues for reform.
Two quick case studies that show different aspects of NHPA’s disfunction, Lucy the Margate Elephant and the SunZia transmission line:
Lucy the Margate Elephant is a roadside attraction and AirBnB near Atlantic City, NJ.
Federal reviewers found offshore wind turbines ~20 miles away would "adversely affect" Lucy under the NHPA -- not by touching her, but by appearing on the horizon within her "viewshed," which you can see below.
You can't un-see a turbine, so there's nothing to physically preserve with mitigation.
Instead, the developer agreed to fund "Visitor Experience" for Lucy.
Not financially ruinous to the wind project, of course (it failed for other reasons) -- but this kind of "everything bagel" costs are part of what makes infrastructure in America more expensive than peer countries.
And wind farms are not the only tall, large infrastructure affected by NHPA.
In our report, we estimate that the SunZia transmission line required a survey area around 2x as big as D.C. -- with a visual study area larger still.
Even this study did not satisfy the project's opponents, who sued, arguing the entire San Pedro Valley should have been considered a historic property under NHPA.
Though the line is now operational, the lawsuit continues with Plaintiffs’ request to set aside BLM’s authorizations currently before a judge.
Luckily, there are ways to curb the excesses of modern NHPA practice while respecting the historic preservation values it was passed to protect.
In the report I propose concrete ways to reform the law while staying true to its purpose and goals:
- Cap view effects at 3 miles (similar to how view effects from telecom infrastructure is treated today)
- Require adverse effects from visual impacts to be material & to be evaluated against the view that exists today
- Where legal error is found, let agencies fix the problem and proceed, instead of voiding the permit, absent extraordinary circumstances
- Put the review NHPA review on a clock, like NEPA got in 2023
- and many more proposed reforms, big and small!