Loper Bright and the National Historic Preservation Act: A case study

In Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court famously overruled the Chevron doctrine, under which courts were required to defer to “permissible” interpretations of an ambiguous statute by the federal agency charged with administering it—even if the court read the statute differently. The Court concluded that “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.”

Litigants post-Loper Bright have since taken up the mantle, challenging regulations and other agency pronouncements they believe are not the best interpretation of a statute, including interpretations of environmental statutes. One area that seems ripe for challenges involves the government’s interpretation of the National Historic Preservation Act’s (NHPA) consultation requirement (section 106)—in particular, its scope with respect to federally licensed actions. Section 106, 54 U.S.C. § 306108, instructs federal agencies to “take into account” the effects of federally funded or federally licensed actions on historic properties.