From our colleague Michael O’Connell:

On April 2, 2010, the Advisory Council on Historic Preservation (ACHP) issued recommendations on Department of the Interior (Interior) procedures for coordination of energy project development and protection of historic properties. Among other measures, the ACHP recommended that: (a) Interior agencies “engage in effective tribal consultations early in the project planning and review process to enable full understanding and appreciation of tribal views on energy development and its potential to affect properties of religious and cultural significance to them;” (b) give “due deference” to the views of Indian tribes regarding the impact on historic properties that are integral to the cultural and religious identify of tribes; (c) ACHP develop guidance with the Council on Environmental Quality on coordination of National Historic Preservation Act (NHPA) and National Environmental Policy Act review processes; (d) ACHP and Interior develop guidance to assist other federal agencies in assessing effects of energy projects, “especially wind and solar projects,” on historic properties that comprise large areas, with special emphasis on properties of cultural and religious importance to Indian tribes; and (e) ACHP clarify the distinction between “direct” and “indirect” effects to historic properties and when visual effects may constitute “direct” effects.

The ACHP’s recommendations could have impacts on the timing, mitigation measures, costs and, in at least some cases, the substance of federal agency decisions for energy projects. Guidance clarifying “when visual effects constitute direct effects” suggests qualitative or quantitative criteria that would be used to condition or disapprove energy development proposals. By way of example, NHPA Section 110(f) provides that prior to approval of any federal action “which may directly and adversely affect any National Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake planning and actions which may be necessary to minimize harm to such landmark, and shall afford the [ACHP] a reasonable opportunity to comment on the undertaking.” The clarifications and guidance documents recommended by the ACHP could introduce unworkable prescriptions, delay and confusion in already complex federal review processes.

The ACHP included the foregoing recommendations in response to Interior Secretary Salazar’s request for ACHP comments on Cape Wind Associates LLC’s application for an outer continental shelf (OCS) lease for a deep-water wind project. Secretary Salazar requested ACHP comments on March 1, 2010 after concluding that further consultation with interested parties to resolve issues relating to Cape Wind Energy Project (Project) impacts on historic properties would not be productive.

The ACHP recommended that Interior disapprove the Project. The ACHP found that the Project would adversely affect twenty eight above ground historic properties as well as six traditional cultural properties of religious and cultural importance to two Indian tribes, including Nantucket Sound. The ACHP found that the Project had adverse visual impacts on two National Landmarks which the National Park Service had determined were only indirectly impacted by the Project. The ACHP emphasized that the concentration and interrelation of adverse effects on multiple historic properties in “their totality . . . are significant, adverse [effects], and cannot be adequately mitigated.”

The NHPA and NEPA are procedural statutes. Both statutes leave agency officials with broad discretion to choose among alternative courses of action and mitigation measures, including alternatives which may result in significant adverse effects on some or all of the historic properties affected by agency action on a project proposal. Secretary Salazar’s decision on the Cape Wind Energy Project and his response to the ACHP’s wide-ranging recommendations will be important signals for how the Administration will balance demands for development of renewable energy with environmental considerations, including decisions affecting minority communities. Secretary Salazar is expected to make a final decision on the Cape Wind Energy Project lease by the end of April.