A new paper from the Breakthrough Institute argues that the National Historic Preservation Act, designed during an era of rapid federal infrastructure development, now struggles to accommodate large, multi-state projects like transmission lines and pipelines. The report identifies three structural flaws in the law's Section 106 review process that generate delays, increase litigation risk, and often leave tribal nations in a reactive position late in project planning. The paper proposes six major reforms to align historic preservation review with twenty-first-century infrastructure needs while preserving meaningful consultation.
The report doesn't present quantitative data on delays or project counts, but it outlines three structural problems that plague the current system. First, sequencing and path dependency cause meaningful tribal consultation to happen after major project decisions have already hardened, reducing opportunities to avoid conflicts. Second, fragmented information and administrative coordination spread responsibility across agencies, tribes, preservation officers, applicants, and courts, each operating under different authorities, timelines, and informational constraints. Third, the Section 106 process doesn't scale well for linear infrastructure—coordination burdens grow dramatically as projects cross multiple jurisdictions, sovereigns, and hundreds of miles.
According to the authors, "Congress designed the National Historic Preservation Act (NHPA) in an era of breakneck federal infrastructure development. But now America struggles to build." The report finds that the Section 106 consultation framework "functions well for routine undertakings" but "scales poorly for large, multi-state transmission lines, pipelines, and other linear infrastructure." The paper states that these structural dynamics "generate uncertainty, increase litigation risk, strain institutional capacity, and complicate infrastructure deployment."
The report's proposed reforms center on two principles: earlier engagement and clearer closure. The authors recommend that Congress require corridor-level cultural-resource screening at the Notice of Intent or pre-application stage for major linear projects, identifying affected tribes and potential routing conflicts before agencies select a preferred route. This early screening wouldn't require full archaeological surveys across every hypothetical corridor. To provide certainty, the paper calls for statutory safe harbors that give agencies following prescribed notice, screening, documentation, and confidentiality procedures a rebuttable presumption they met the "reasonable and good faith effort" standard. Other recommendations include reducing the time litigants have to bring claims, making the Record of Decision the final agency action, limiting late-stage injunctions, strengthening confidentiality protections for tribal cultural information, providing durable funding for State and Tribal Historic Preservation Officers, and compensating tribes when they provide expert identification services.
The report concludes that these reforms "would preserve meaningful consultation and historic preservation while durably aligning the Section 106 process with the infrastructure needs of the twenty-first century." By moving cultural-resource screening earlier in the planning process and establishing clearer procedural endpoints, the authors argue agencies can identify and resolve conflicts before routing decisions become locked in—giving tribes a seat at the table when their input can still shape outcomes rather than just delay them.