Dear Senators Fetterman and McCormick,
I am writing you with regard to the Bipartisan American Affordability and Jobs Act of 2026. With the perspective of 30 years of experience in historic preservation and NEPA through a state transportation agency, I believe this bill is deeply flawed. Not only does it remove many of the environmental and historical protections that have been in place for 6 decades, but fails to deliver on its main purpose, delivering faster energy projects. I am requesting that you do not support this legislation.
My particular expertise is in Section 106 and will focus my comments there. From the perspective of Section 106, this guts almost all of the protections that Section 106 offered to historic properties. This part of the bill (Title III) seems particularly gratuitous, insofar as Section 106 has not be an impediment to project delivery, although it is often blamed (incorrectly) for slowing them down. In my 30 years of experience, I have never seen a major transportation project delayed due to a Section 106 issue. Not once.
History always happens somewhere and every place has a history. To lose our historic places is to lose our history. In the original 1966 National Historic Preservation Act the wording is:
- the spirit and direction of the Nation are founded upon and reflected in its historic heritage;
- the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people;
- historic properties significant to the Nation’s heritage are being lost or substantially altered, often inadvertently, with increasing frequency;
- the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans;
Section 106 of the Act requires that Federal agencies consider the effects of their undertakings on historic places. It is two small paragraphs in the larger Act. Most of the functioning machinery of Section 106 is written in its regulation 36 CFR 800, which has been tweaked since being implemented but not wholly rewritten.
In the proposed bill, project undertakings are limited to that which the Federal agency grants a Federal permit, license, or approval, and, exercises substantial control or responsibility over the outcome. Undertakings are as much defined by what is excluded as included. Projects that are excluded are those where the Federal agency does not exercise substantial control over the outcome, and, projects where the Federal involvement is a loan, loan guarantee, grant, cost-share aware, or other form of financial assistance.
The language in the proposed bill would exempt most Federal projects from Section 106 immediately. Projects funded by the Highway Trust Fund – projects that today are undertakings – would now be exempt from Section 106. Nationally, that represents $60b a year in projects in all 50 states. In Pennsylvania about 2/3 of projects have Federal Funding. Under the proposed bill, none of these projects would be undertakings. Other programs such as CDBG grants and HUD grants would similarly be exempt.
For those projects still subject to Section 106, the bill further limits its coverage by excluding any geographic area within the undertaking that is not subject to Federal control or responsibility. This is similar language to what the Army Corps of Engineers used in its regulations until recently. A length of road across a stream that required a Corps permit and could not be built without the permit still had its “area of potential effect” (read project area) limited to that which the Army Corps controlled: the area immediately adjacent to the stream, not the mile approach on either side.
Under current law, the State Historic Preservation Officer or Tribal Historic Preservation Officer must be notified and consulted on proposed undertakings. Under current regulations, affected Tribes, representatives of local governments, and applicants must be consulted. Additional interested parties may be consulting parties. The public must be notified and given the opportunity to comment before the Section 106 process is completed.
Under the proposed bill, there is no consultation. The Federal agency prepares a report and sends it to the SHPO for review and concurrence. It published the results afterwards for public inspection. In transportation, all projects are local, and the good will of the local community determines the future direction of the agency. Section 106 helps cement that good will. Removing it feeds distrust in state and federal agencies that are responsible for serving the public.
Under the existing regulations, historic properties within the area of potential effect, i.e., the project area, are evaluated as to whether the project would adversely affect them. There is a test of characteristics the historic property has against the potential effects. If there is a “diminishment” of one of the characteristics, such as material, or setting, or location, then the affect is adverse and consultation is required to resolve that harm. Properties do not have to be blitzed to be adversely affected, just diminished in its “integrity of location, design, setting, materials, workmanship, feeling, or association.”
Under the proposed bill, adverse effects do not include visual, atmospheric, or audible elements unless there is a direct impact on the historic property. Also exempt are (presumably) effects (to historic districts) that would impact contributing elements, cultural-use locations, or access points. (I am not really sure what the authors are driving at here, but it appears the main thrust is to ignore anything but a direct hit.)
Although the thrust of the bill is speeding permitting for energy projects, the changes to Section 106 would also apply to data centers, and seem especially suited to protecting them from any challenge on historical grounds. In principle, you could build data centers along the property line of the Gettysburg Battlefield and the public, governmental officials, or the State Historic Preservation Office would have no recourse. If you think this is unlikely, I only point to the East Wing of the White House, the Kennedy Center, and the proposed Arch next to Arlington National Cemetery.
Under the current law, properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register.
Under the proposed bill, a property of traditional, religious, or cultural importance is specifically defined in limiting terms. Although the language is exceptionally unclear, it could be read (and would be read by this Administration and a friendly court) to mean only those places actively used by living communities could be considered. This goes against much of Indigenous religious belief. Indigenous communities do have to be consulted, but now have to work within this restrictive framework. This particular language may be in violation with the American Indian Religious Freedom Act of 1978, as well as the First Amendment of the US Constitution.
There are other provisions that are problematic for Section 106, as well as NEPA, and the Clean Water Act. The bill creates a one-sided imbalance between applicants and the entire historic preservation community. Applicants can sue for damages if their projects are impeded. The SHPO can be punished for “performance” issues. The Federal Agency can ignore any of the comments provided by the SHPO, Tribes, consulting parties, or the public. Judicial reviews are (unconstitutionally?) limited, as well.
The National Historic Preservation Act has worked well for 60 years. In my own experience in transportation, there is virtually never an issue over Section 106 in project delivery. The flexibility in the law enables agencies to find creative solutions to balancing project needs with historic preservation, and the consultation process is inclusive and effective. The proposed bill is a solution in search of a problem. It is more likely to land projects in court and create delays in spite of its stated goals to expedite project delivery.
Sincerely,
Ira Beckerman, Ph.D., RPA
