Advisory Council on Historic Preservation Rescinds its NEPA Implementing Regulations Following Executive Order and Supreme Court Precedent

Introduction: ACHP Rescinds NEPA Procedures

The Advisory Council on Historic Preservation (ACHP) has taken a significant step by rescinding its regulations for implementing the National Environmental Policy Act (NEPA). This action, announced as an interim final rule effective June 5, 2026, removes 36 CFR part 805 from the Code of Federal Regulations. The move follows a directive from President Trump's Executive Order 14154 and subsequent actions by the Council on Environmental Quality (CEQ). It also acknowledges recent legislative changes to the NEPA statute and a landmark Supreme Court decision regarding NEPA interpretation. This rescission aims to eliminate outdated and rarely used internal procedures that no longer align with current federal environmental policy and legal precedents. The ACHP is currently soliciting public comments on this interim final rule.

The Council's Limited NEPA Engagement

The ACHP functions as an independent federal agency dedicated to promoting the preservation of America's historic places. It advises the President and Congress on national historic preservation policy. Its regulations at 36 CFR part 805, established in 1980, were designed to supplement CEQ's broader NEPA regulations. These specific procedures outlined how the ACHP would comply with NEPA. However, the ACHP rarely undertakes major federal actions that necessitate a NEPA review. The agency's last recorded NEPA document was an Environmental Assessment in the late 1990s, which resulted in a Finding of No Significant Impact. Due to this infrequent need, the existing regulations have seen minimal application over several decades.

Driving Forces Behind the Rescission

Several pivotal developments prompted the ACHP's decision. On January 20, 2025, President Trump issued Executive Order 14154, "Unleashing American Energy." This order revoked a prior executive order and directed the CEQ to propose rescinding its own NEPA regulations. Subsequently, the CEQ did rescind its NEPA regulations and issued guidance to federal agencies on revising their NEPA procedures in light of the Executive Order. The ACHP's regulations at 36 CFR part 805 were explicitly designed to supplement the CEQ's regulations. With the CEQ's foundational regulations now rescinded, the ACHP's supplemental procedures became outdated and obsolete. Further reinforcing this shift are recent legislative changes to the NEPA statute itself. Congress amended NEPA twice since 2023, including provisions within the Fiscal Responsibility Act of 2023. These statutory changes have altered the landscape of NEPA compliance. Adding to this legal evolution is the Supreme Court's 2025 decision in Seven County, Infrastructure Coalition v. Eagle County, Colorado. This landmark ruling affirmed that agencies possess broad discretion when conducting NEPA reviews. It emphasized substantial deference to agencies regarding the scope and extent of considering potential effects in a NEPA review, particularly concerning an agency's authority and the importance of the issue to the decisionmaker. The cumulative effect of these changes, both statutory and jurisprudential, has made it less probable that a future ACHP action would fall within the revised scope of the NEPA statute.

Legal Justification for Interim Final Rule

The ACHP is implementing this rescission through an interim final rule. The agency asserts this approach is permissible under the Administrative Procedure Act (APA). It categorizes its NEPA regulations as rules of agency procedure and practice, which are exempt from standard notice-and-comment rulemaking under 5 U.S.C. 553(b)(A). These procedures dictate how the ACHP conducts environmental reviews internally and incorporates them into its decision making. They do not impose substantive requirements or binding legal obligations on external parties. The ACHP also cited "good cause" under 5 U.S.C. 553(b)(B) for issuing an interim final rule. The rescission of CEQ's regulations created confusion about the ACHP's NEPA responsibilities. An interim final rule allows for immediate resolution of this uncertainty while still providing a public comment period. The agency notes that while it previously used notice and comment for promulgating Part 805, it is not bound to do so for its rescission, citing Perez v. Mortg. Bankers Ass'n (2015). The interim final rule satisfies APA procedural requirements by including legal authority, a description of the rule's terms, and a request for public comment.

Public Participation and Next Steps

Despite the legal justification for proceeding with an interim final rule, the ACHP is actively seeking public input. Comments on the rescission are due by July 6, 2026. The agency commits to considering all received comments and providing responses in a subsequent final rule. This final rule may include modifications based on the public's feedback. This approach reflects the ACHP's commitment to public participation even when not strictly required by the APA.

Regulatory Impact Assessment

In compliance with various federal requirements, the ACHP has conducted a regulatory compliance analysis. The Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) has determined this rulemaking is "significant" but not "economically significant" under Executive Order 12866. It does not meet the criteria for congressional review under the Congressional Review Act. Furthermore, the rule contains no information collection requirements under the Paperwork Reduction Act. It is not subject to the Regulatory Flexibility Act due to a lack of significant economic impact on small entities. The Unfunded Mandates Reform Act does not apply, as the rule's mandates do not exceed the annual spending threshold. Finally, the ACHP determined that this action has no federalism or "takings" implications under Executive Orders 13132 and 12630 respectively, nor substantial effects on Indian Tribal Governments under Executive Order 13175. The rescission addresses only internal ACHP procedures.

Forward Outlook for Historic Preservation and Environmental Review

The rescission of 36 CFR part 805 marks a notable adjustment in how the ACHP navigates environmental review. While the agency has stated that its NEPA procedures were rarely utilized and became obsolete, the absence of codified internal procedures could prompt future discussions on how the ACHP will handle potential major federal actions that might arise. The agency explicitly stated it may develop new internal NEPA procedures if deemed useful or necessary at a later date. This decision reflects a broader trend of federal agencies streamlining or reevaluating their NEPA compliance in light of recent presidential directives, legislative reforms, and Supreme Court interpretations. The focus shifts towards agency discretion and alignment with overarching federal policy. Stakeholders in historic preservation and environmental protection will likely monitor how this change influences the ACHP's future actions and its role in balancing preservation with other federal objectives. The public comment period offers an opportunity for affected parties to voice concerns or offer insights into the implications of this regulatory change.