Policymakers are working to institute substantial permitting reforms to simplify infrastructure projects throughout the country. The current system is impractical and broken, causing headaches and delays across every sector.
A driver of some of these permitting delays is the National Historic Preservation Act (NHPA), which must be considered for any federal project wishing to receive permits; however, the statute routinely slows, complicates, and even blocks federal permitting. Modernization is needed.
Passed in 1966, NHPA was meant to “foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony.” As part of NHPA, Section 106 requires federal agencies to consider the effects of their actions on historic properties. The Advisory Council on Historic Preservation (ACHP)—established under NHPA—needs to have a reasonable opportunity to participate.
Even though Section 106 does not mandate a particular substantive outcome or prohibit development, it is procedural and ensures agencies examine effects and consult necessary third parties in good faith.
Federal agencies must communicate with a myriad of offices, regardless of the level of impact: State Historic Preservation Offices (SHPO), Tribal Historic Preservation Offices (THPO), and ACHP. Their inclusion adds procedural steps and delays. Agencies must work with these groups to identify historic properties in the project area, assess effects, and negotiate avoidance, minimization, or mitigation measures. But it isn’t always easy.
Multiple tribes might have conflicting demands, or some don’t engage until late in the process, further disrupting project timelines. In some cases, tribal groups do not wish to disclose exact locations of sacred sites due to privacy or religious reasons.
The SHPOs are chronically underfunded and understaffed, leading to backlogs. Outdated technology also slows their ability to process the growing volume of federal projects.
Other obstacles are also problematic.
Projects that qualify for a categorical exclusion under the National Environmental Policy Act (NEPA) must still undergo Section 106 review if historic properties might be affected. This means a project can be “fast-tracked” under NEPA but still slowed by NHPA.
Litigation is common, typically challenging whether every statutory requirement has been met and every conceivable impact on listed or eligible historic sites has been taken into consideration. If agencies fail to consult properly, courts can vacate permits, even if the project’s physical impacts are minor.
The Biden administration even used Section 106 as a climate policy tool by requiring possible climate change risks to historic sites be taken into consideration. Such tactics have little if anything to do with historic preservation.
The Department of the Interior explicitly acknowledged that Section 106 compliance was slowing or complicating energy‑related approvals, prompting the agency in April 2025 to invoke emergency procedures under the “emergency provisions” of the Section 106 regulations. The 2025 National Energy Emergency Executive Order issued the month prior admonished cabinet leaders to “identify and exercise any lawful emergency authorities available to them.”
For energy and transportation, Section 106 is one of the most common non‑NEPA bottlenecks. According to a 2025 Senate Committee Hearing, the Section 106 process is frequently cited as creating “unclear, open-ended consultations that cause significant permitting delays.”
Several examples illustrate the complications.
- The Baltimore-Washington Superconducting Magnetic Levitation (SCMAGLEV) Project is a high-speed rail system connecting Baltimore, MD and Washington, D.C. to significantly reduce travel time, relieve congestion, and meet the demands of the region. The project required identification of dozens of historic districts, archaeological sites, and cultural landscapes in which the Federal Railroad Administration (FRA) had to consult with over a dozen stakeholder groups. Section 106 became a major driver of the stalled Environmental Impact Statement, and the FRA ultimately suspended the project.
- The Dakota Access Pipeline (DAPL) was designed to transport up to 1.1 million barrels of crude oil daily from North Dakota’s Bakken region to Illinois, offering a faster, cheaper, and safer alternative to rail and truck transport. The pipeline faced numerous legal challenges arguing the agencies in charge failed to engage in meaningful consultation and ignored concerns. Multiple lawsuits caused major project delays, and even though it has operated for nearly a decade, DAPL still battles litigation.
- The SunZia Southwest Transmission Project involves two transmission lines transporting wind energy from New Mexico to Arizona and California and has required extensive tribal consultation for cultural landscapes and archaeological sites. The project has suffered many delays, with the final approval demanding route changes and a complex mitigation agreement. After 20 years of development, permitting, and construction, the project is finally set to be operational this year.
Too many projects get delayed or cancelled because of loose interpretations, unnecessary steps, litigation loopholes, and/or redundancy. Congress could streamline Section 106 without eliminating preservation protections by tightening scope, timelines, responsibilities, and deference.
Congress could implement the following:
- Low-impact projects should be exempt and only those with reasonable potential to affect historic properties should require review. This would remove thousands of trivial reviews that clog the pipelines.
- Timelines could be imposed to eliminate open-ended consultation. Give time limits for SHPO, THPO, and ACHP involvement. Lack of response could be deemed concurrence, after reasonable good-faith efforts were made to engage groups. Tightening timeframes would eliminate excessive waiting periods usually caused by non-responsiveness.
- Reduce duplication with NEPA, which often requires the same analyses, by codifying joint NEPA-106 documents so agencies don’t run two parallel processes. This cuts redundant paperwork by not running an analysis more than once.
- Modernize the definition of “Historic Property” by clarifying eligibility criteria for archaeological sites and cultural landscapes. Simplification creates more certainty.
- Reduce litigation risk by barring challenges based solely on minor procedural defects irrelevant to outcomes and set a statute of limitations for Section 106 claims. Frivolous lawsuits should not derail project completion.
Modernizing Section 106 is not about weakening preservation protections; it is about restoring the balance Congress intended. Reforms would maintain meaningful consultation and protection of historic properties while ensuring that critical energy, transportation, and infrastructure projects are not derailed by avoidable delay.
Kristen Walker is Senior Policy Analyst and Manager for Energy and Transportation with the American Consumer Institute, a nonprofit education and research organization. Follow ACI on X @ConsumerPal.