Enforcing Section 106

I understand that at the recent meeting in Palm Springs, California to discuss tribal cultural issues with energy development, some tribes were particularly vehement about the need for Section 106 of the National Historic Preservation Act (NHPA) and maybe the National Environmental Policy Act (NEPA) to be enforced more vigorously.


This is an interesting issue, and not as straightforward as one might think. For a very insightful discussion, let me recommend "Two Shades of Green," issued some years ago by the Rand Corporation. ?Two Shades? compared how the Army complies with environmental laws that feature outside enforcement (Clean Air Act [CAA], Clean Water Act [CWS], etc.) and those that are supposed to be self-enforcing (NEPA, 106, etc.). It found, not surprisingly, that the Army did a helluva lot better with the former than with the latter. The report's downloadable at http://www.rand.org/pubs/reports/R4220.html, and worth reading.

BUT it's a lot easier to enforce such hard-edged laws like CAA and CWA, which say things like "thou shalt not pump more than X ppm of gunk into the environment," than it is to enforce soft, squishy, process-oriented laws like 106 and NEPA, and even CAA/CWA enforcement doesn't work perfectly (See, for example, Our Unprotected Heritage [Left Coast Press 2009], pp 47-48, 135-6). AND such enforcement requires a largish bureaucracy (at USEPA and the state EPAs) to carry out.

And most importantly, I think it's an unavoidable rule that the tighter the enforcement of an environmental law, the more narrowly and nit-pickingly the subject of the law will be defined. If you think we have problems now with issues like ?how big is your traditional cultural property,? just wait till you start trying to enforce legal protections for such properties.

I don?t mean to discourage tribes or anyone else from considering how to enforce the laws, or to otherwise make them work better. I?m just saying that it?s something of a trick to imagine how enforcement could be built into NEPA or 106 without greatly restricting the scope of their application. It'd be interesting to try, but would need to be undertaken with considerable care and creativity.

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