On June 28th, the U.S. Supreme Court issued a highly anticipated decision overturning the 40-year-old Chevron doctrine, which had previously required courts to be extremely deferential to federal agency decisions when interpreting statutes, based on the expertise of the administrative branch of government. As a result, courts will now be given a lot more leeway to overturn federal agency decisions, including regulations.

While there has been much anxiety about the potential implications of this decision by the Supreme Court, federal historic preservation law is likely to be less threatened than other arenas, for several reasons.

First, the regulations implementing Section 106 of the National Historic Preservation Act have been specifically upheld by the courts, and the new Supreme Court decision states, “we do not call into question prior cases” that upheld agency actions and regulations.

Second, the new Supreme Court decision states that, “when a particular statute delegates authority to an agency . . . , courts must respect the delegation . . .” In the case of Section 106, Congress has specifically directed the Advisory Council on Historic Preservation to “promulgate regulations as it considers necessary to govern the implementation of section [106] in its entirety.” [54 U.S.C. § 304108(a).

Third, it is important to keep in mind that historic preservation advocates are often in the position of challenging federal agency decisions, and urging courts to be less deferential to agencies whose decisions are inconsistent with the Section 106 regulations. We have also successfully challenged regulations themselves on occasion, including surface mining regulations, FCC regulations, and the Army Corps of Engineers’ notorious Appendix C regulations (recently revoked by the Corps, after a number of court decisions declaring them unlawful).

The National Trust will be featuring this important topic at our upcoming conference on historic preservation law on September 12, and we encourage you to register for the conference.

Meanwhile, we are conferring with our partners to determine the most effective course of action going forward and will keep our colleagues and partners informed along the way. We remain fully committed to ensuring that preservation laws are there to benefit future generations.