America's historic preservation law is in peril, advocates say. Here's what's at stake

It's been exactly 60 years since President Lyndon B. Johnson signed the National Historic Preservation Act (NHPA) into law, alongside half a dozen conservation bills.

"We have come here this morning to give part of our country back to its people," Johnson declared at the bill signing on Oct. 15, 1966.

Now, historic preservation advocates say, the government is trying to yank the public's power away.

"Preservation, from its inception, has worked best with public and private partnership," Brent Leggs, the president and CEO of the nonprofit National Trust for Historic Preservation, told NPR. "Over the last year and a half, the federal government has divested that responsibility."

It's a far cry from 1966, when the NHPA created a mechanism for identifying and protecting the country's historic sites — ranging from a single tree to an entire district.

Because of that law, those landmarks — today, more than 100,000 of them — are listed on the official National Register of Historic Places. And federal agencies must consult with states, tribes and stakeholders before beginning any projects that could potentially harm them, through a process called Section 106 review.

"Section 106 is in many ways the teeth behind the National Historic Preservation Act," said Elihu Rubin, a professor of architecture and urban studies at the Yale School of Architecture. "It is Section 106 that insists … that federal projects that threaten historic resources can only proceed when efforts are made to mitigate the impacts on those resources."

Section 106 has saved historic buildings from demolition and prevented development on archaeological sites, according to "success stories" recently compiled by the National Trust for Historic Preservation. But, Rubin stresses, the review process doesn't necessarily stop projects from happening — and that's the point of participating in it.

"Some of the most interesting projects that come out of it are surveys of fascinating buildings or places that will be lost," he said. "But we gain a lot from that process."

That process is now facing dual threats. A federal council packed with Trump appointees voted this summer to weaken Section 106 regulations, while a bipartisan permitting reform bill gaining traction in the Senate would significantly narrow the review process in order to speed up infrastructure and energy projects.

"It will effectively rewrite the National Historic Preservation Act in ways that, for all intents and purposes, gut its meaning and protections for hundreds of thousands of sites across the country," said Greg Werkheiser, whose law firm, Cultural Heritage Partners, is leading a coalition to protect Section 106.

"Section 106 Strong," which officially launched Thursday, says it spans 1,000 organizations — including religious, environmental and civil rights groups — and Tribal Nations collectively representing more than 9 million Americans.

"I've been involved in historic preservation and politics for 30 years, and I've rarely seen a movement come together this quickly," he told NPR. "I think Americans are simply fed up with watching their history manipulated, defaced, or destroyed as an instrument of political power."

Historic preservation law was a reaction to widespread destruction 

During the Great Depression, the federal government hired workers to survey historic buildings across the U.S. They documented 12,000. But by 1965, when Johnson convened a committee to study the issue, half of those buildings had been either destroyed or damaged beyond repair.

"Folks concluded that if … we don't have some strong federal provisions, the natural instinct to just build as fast as you can, wherever you can, is going to take over," Werkheiser said.

The push for historic preservation was borne out of public backlash to post-World War II urban renewal and highway construction, which displaced entire communities and destroyed many American landmarks — including New York City's original Penn Station.

"Because so much of the funding and impetus from these projects were coming from federal housing policy, there was an idea here that there needed to be a framework put in place to identify historic resources and to — if not protect them entirely — at least to acknowledge them and then to mitigate the negative impacts," Rubin explains.

The 1966 law provided that framework. Among other provisions, it tasked every state with opening its own office to administer national preservation programs.

Native American tribes and Native Hawaiian organizations weren't included in those duties until 1992, one of the last major amendments to the law. Leaders of the Tribal Historic Preservation Officers (NATHPO) told NPR that tribal communities now risk losing the seat at the table that it took them so long to get.

"The changes that are being proposed now — both on the regulatory front and the statutory front — would represent an enormous and devastating setback not just to pre-1992, but to pre-1966 historical preservation and the state of tribal voice and perspectives being considered," said Valerie Grussing, NATHPO's executive director of legislative affairs and strategic partnerships.

Historic preservation experts maintain that Section 106 gives experts and the public visibility into federal construction projects without significantly slowing them down. In fact, the National Trust for Historic Preservation says the nationwide average for a review is 16 days, and that 98% of those reviews conclude that the project will have no adverse effect on nearby historic resources.

"At the end of the day, it's [about] whether or not the federal government can come into your backyard and to your community and do whatever they want," said Chris Cody, associate general counsel for the National Trust for Historic Preservation.

These days, Cody estimates that his two-person team spends about 70 hours a week answering calls for help from local jurisdictions while also fighting federal cases in Washington, D.C. For example, the National Trust sued the Trump administration over the construction of its White House ballroom, but lost after the Supreme Court ruled the nonprofit lacked legal standing.

That's one of many of President Trump's controversial renovations — including his proposed arch and municipal golf course redevelopment — that critics say are bulldozing over historic preservation laws and norms. It's against this backdrop that the National Trust for Historic Preservation recently launched a defense fund, aiming to raise an initial $10 million to protect the places and laws now in the crosshairs.

Cody calls this a "moment of existential crisis" for preservation efforts nationwide, not just in D.C.

"There is somewhat of a trickle-down effect happening around the country, as various, I would call them, bad actors are trying to push the limits of the law in regards to historic preservation," Cody said. "It just seems to be a moment in time where everyone … who does not care about preservation or has it sublimated to other goals is trying to push the envelope."

Leggs, who leads the National Trust, said "every American should be concerned" about this trend, not only because it could spell trouble for a church or cemetery of personal significance, but because of the "wisdom, lessons, education and inspiration that is imbued in historic places" — and could be lost — to future generations.

Advocates fighting a double-headed threat look to November 

The 1966 law also created the Advisory Council on Historic Preservation, a federal agency tasked with advising Congress and the president on such matters. Twenty of its 24 current members were appointed by Trump.

In July, the council voted to weaken Section 106 regulations in a few notable ways. It would limit what kinds of properties can be considered historic in the first place, excluding "significant landscape features" like the Grand Canyon. The change would also make public comment on new projects optional and remove the requirement to consult with Native American tribes.

Those changes are still going through the federal rulemaking process, which includes a 30-day public comment period that has not yet opened. The council next meets on Nov. 10. In the meantime, another threat to Section 106 has emerged in Congress — one that historic preservation advocates say is even more serious.

"[The regulatory changes have] been the biggest five-alarm fire for our membership and our constituency in our mission … in decades," said Grussing, of NATHPO. "And now with the proposed statutory changes, I would say it's turned into more of a wildfire."

In late September, a bipartisan group of senators introduced a bill they say will "reform the federal environmental review and permitting process" to "deliver cheaper energy, more jobs, and responsible growth" across the U.S. One of its provisions would streamline Section 106 in similar ways — curtailing public and tribal input, narrowing the scope of analysis and restricting legal remedies for violations.

The Senate says it plans to consider the bill when it returns from recess on Nov. 9.

These changes would be enshrined in the law, as opposed to regulations that could more easily be reversed in the future, says NATHPO Executive Director Ira Matt, a citizen of the Salish Tribe.

"A lot of the preservation community's looking at this, saying: 'We do not want to be party to these changes that are going to outlive most of our careers. We do not want to saddle the next generation with … the failures that are coming out of this permitting reform,'" Matt said.

Matt says it is "unfortunate" to see senators join forces on a bill that would restrict tribal sovereignty, particularly since its Democratic sponsors have otherwise been strong allies in tribal and historic preservation issues.

Last week, NATHPO and other tribal groups sent a letter to Senate leaders urging them to drop this provision from the proposed bill and consult with tribes about a better approach.

"Instead of bringing this permitting reform [bill], bring the promise that you'll do something next year — informed by committees, developed through consultation and in conjunction with the preservation community — where we can bring in facts, we can bring in requests, we can bring in experience to actually build something sustainable," Matt said.

Critics of the Senate bill say it actually introduces more questions and confusion about the Section 106 process. For example, it doesn't define specific terms (like what constitutes a "minor" restoration or "required metrics" for state and tribal officials to meet).

Both Matt and Werkheiser told NPR that when they asked Senate staff about this during recent lobbying meetings, they were told that Democrats and Republicans couldn't agree on definitions and expected those questions to end up in court.

"The thing that they keep saying about the bill is it's going to create efficiency and keep these controversies out of the court," Werkheiser said. "And then, on the other hand, they're like, 'Well, we haven't really done any of the work of deciding what any of this means. And so the court's going to have to sort it out.'"

Werkheiser says the bill wouldn't create efficiency by streamlining Section 106 — it would actually create "a much greater chance of controversy, objection and litigation further down the process" by excluding public and expert consultation at the start. That's one of many reasons he hopes more people will join the fight to protect historic preservation law in the weeks and months ahead.

"You can disagree about politics. You can disagree about the future," he said. "But you shouldn't have to fight your own government for the right to remember your past."