I sent this letter to the Editor to our local paper at Penn Live. I don’t expect them to print it, since it is almost twice as long as what they will run as a commentary piece. My problem is that almost no one understands Section 106 and to explain why the BAAJA is so toxic to historic preservation, you need to explain both the current law and the proposed law. Secondly, BAAJA has barely been on the radar for news organizations, and when it is the only slant is over whether it favors renewable energy or not. Nothing on the collateral damage for Section 106, or NEPA and the Clean Water Act for that matter.

The Editorial is focused on Central Pennsylvania as this is where I live. If there’s anything in it you can use in your region, have at it.

Data Centers in the Gettysburg Battlefield.

Now that I have your attention, there is a piece of legislation about to be considered in the US Senate that could do just that and much worse.  It is called the Bipartisan American Affordability and Jobs Act of 2026. Although it purports to streamline permitting for energy and transmission projects nationally, it masks a generational weaking of environmental and historic preservation laws. My own expertise is in historic preservation, especially Section 106 of the National Historic Preservation Act of 1966, and it is in Title III of the proposed legislation that Section 106 is largely gutted.

Most folks have never heard of Section 106 and many of those who have don’t understand it. It is a wonky piece of legislation despite it being only one paragraph of 126 words. If there’s a project with some federal tie-in, such as permitting or funding or on federal land, the agency in charge has to consider the impacts the project would have on historic resources and give the Advisory Council on Historic Preservation the opportunity to comment.  In practice, through the set of Federal Regulations 36CFR800 (wherein lies the wonkiness), the process involves determining the project’s impact area, whether there are any historic resources that could be affected (read impacts), determining if there is an adverse effect (read impacts), and consulting to see if there are ways to minimize or mitigate those effects. Throughout, there is an array of consulting parties besides the Advisory Council, including the applicant, the State Historic Preservation Officer, involved Native American Tribes, local governmental officials, other interested consulting parties, and of course, the public. What is most difficult to convey, especially to some applicants, is that this is a process law, meaning the outcome is determined through the process and not by a checklist of criteria. You are basically done when you’re done.

This scares some people, especially applicants, as it can play with predictability and schedules. Still it has worked well for 60 years with the outcomes providing practical protection to historic places, often improving the project design, and generally leaving the public and other parties satisfied that they had their voices heard.

Because this is a process law, regulations have encouraged flexibility to streamline the process and focus on what is important. While in theory projects could go through the entire Section 106 process leading to a memorandum of agreement, in reality the vast majority of projects never get close to that point. Using a state DOT I used to work for as an example, because of a carefully drafted programmatic agreement, of all the projects subject to Section 106, around 85% were exempted from further process at the beginning due to their nature. Generally the project exemption can be done in a day. Of the remaining 15%, all but 2% either didn’t have historic resources or didn’t have an adverse effect. Once this had been established, there was no further work. For those remaining 2% of projects, there could be redesigns to avoid the adverse effect or mitigation that considered those adverse effects. These tend to be on the largest and most complex projects, but even then, Section 106 wouldn’t hold up a project. (Usually it’s lack of funding!) I’ve never seen a project held up for Section 106 in 25 years of work. What I have seen at my DOT is repeated in other states and with other non-transportation agencies. Section 106 is not the cause of project delays.

This makes the proposed language in Title III of the legislation all the more illogical, because it will remove most protections for historic places but not speed up any project.  Under the current law, a Federal undertaking is broadly defined to include permitting, funding, on Federal land, etc. Under the proposed law, a Federal undertaking is greatly narrowed to mean only those undertakings where the Federal agency grants a permit or license, and, had control over the project. Undertakings that will no longer be undertakings include projects where the Federal involvement is “a loan, loan guarantee, grant, cost-share aware, or other form of financial assistance.”  None of Pennsylvania’s Highways are owned by the Federal Highway Administration. In Pennsylvania, projects funded by the Federal Highway Trust Fund, representing 2/3 of its projects and nationally representing $60b across all 50 states, would no longer be subject to Section 106. It’s not limited to PennDOT.  Other programs such as CDBG grants and HUD grants would similarly be exempt. There would be no consideration, no public involvement, and no mitigation for any of these projects. It’s not just about energy production and transmission lines.

For those projects still subject to Section 106, the bill further limits its coverage by excluding any geographic area within the project 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. For a linear project crossing a stream, the only portion that could be considered under Section 106 would be the area immediately adjacent to the stream, and no more.

With regard to consultation and public involvement, the proposed legislation simply eliminates it. The Federal agency prepares a report and sends it to the SHPO for review and concurrence. It published the results afterwards for public inspection.  The agency is under no obligation to listen to any comments provided, nor the views of the State Historic Preservation Officer, interested tribes, or local officials. The process becomes a check-box.

Under the existing regulations, historic properties can be adversely affected not only directly, but by visual, atmospheric, or audible elements, such as smoke, lights, and noise. Twenty-five years ago, the Gettysburg National Tower, an eyesore which could be seen in any part of the battlefield was finally demolished after a long public effort.  The proposed legislation would see no problem with that tower or even a data center adjacent to the battlefield. In principle, a data center could be built within the Battlefield, if it was built on “contributing elements, cultural-use locations, or access points.”  There would be no historic preservation law to turn to.

There are other provisions in the proposed legislation that are problematic for Section 106, as well as for NEPA, and the Clean Water Act. The treaty rights of Tribal Nations are largely disregarded. The proposed legislation may be in violation with the American Indian Religious Freedom Act of 1978, as well as the First Amendment of the US Constitution.  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. Judicial reviews are (unconstitutionally?) limited, as well.

Coming back to the opening comment, 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 in the Gettysburg Battlefield and the public, governmental officials, or the State Historic Preservation Office would have no recourse, not on the basis of noisy generators and poor air quality from burning natural gas to power them, nor light impacts, nor harm to water quality, nor use of Federal land. If you think a data center in the Battlefield is an absurd idea, I only point to the East Wing of the White House, the Kennedy Center, and the proposed Arch next to Arlington National Cemetery.

The National Historic Preservation Act has worked well for 60 years. There are 3,600 properties listed in the National Register of Historic Places in Pennsylvania alone, and many times that which have been determined eligible and also subject to Section 106 consideration. Every one now stands at risk from a Federal project, a project in which neither you nor your elected officials will have a say; you may not even know of the project until it is approved. The flexibility in the current law enables agencies to find creative solutions to balancing project needs with historic preservation. The consultation process is inclusive and effective. The proposed bill is a solution in search of a problem. At best, it is more likely to land projects in court and create delays in spite of its stated goals to expedite project delivery. At worst, it recalls the chorus on Joni Mitchell’s Big Yellow Taxi. “Don’t it always seem to go that you don’t know what you’ve got ‘til it’s gone.” It was true in 1970 when it was written. It is true today.