On June 28, 2024, the Supreme Court of the United States rendered its decision in the case of Loper Bright Enters. v. Raimondo (Loper). That decision overturned the long-standing Chevron doctrine, under which courts would defer to permissible agency interpretations of ambiguities in the statutes those agencies administered. After Loper, courts will exercise their independent judgment and use traditional tools of statutory construction to resolve statutory ambiguities, without deferring to an agency interpretation of the law.

It is the position of the Advisory Council on Historic Preservation’s Office of General Counsel (OGC) that the regulations implementing Section 106 of the National Historic Preservation Act, codified at 36 C.F.R. part 800 (Section 106 regulations) should be safe from challenges emanating from the Loper decision.

In Loper, the U.S. Supreme Court was careful to confine its holding, stating that:

By overruling Chevron, though, the Court does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology.

The Section 106 regulations were upheld against a broad and all-encompassing challenge in Nat’l Mining Ass’n v. Slater, 167 F.Supp.2d 265 (D.D.C. 2001), with the court using the Chevron framework. The only parts of the regulations that were struck down were removed by 2004.

Moreover, the Loper decision also recognized that Congress may sometimes confer on agencies the type of discretionary authority that may make deference to their interpretations of ambiguities permissible, and that courts will “respect such delegations of authority.” It is worth noting that the regulatory authority that Congress has conferred on the ACHP regarding Section 106 is quite broad, giving the ACHP wide discretion to: “promulgate regulations as it considers necessary to govern the implementation of [Section 106] in its entirety.” 54 U.S.C. 304108(a)(emphasis added).

The Section 106 review process under 36 C.F.R. part 800, and the ACHP’s role overseeing it, remain unchanged.