Cultural Resources in an Environmental Assessment under NEPA

Abstract

Does it “significantly affect the quality of the human environment” to bulldoze an Indian cemetery? To knock down a fine old building? To allow development that changes the character of a low-income or ethnic neighborhood? If a project subject to review under the National Environmental Policy Act (NEPA) may do any of these things, should an Environmental Impact Statement (EIS) be prepared? If not, why not? Cemeteries, old buildings, and neighborhoods are among the environmental components sometimes called “cultural resources.” Impacts on them must be considered in judging impact intensity in an Environmental Assessment (EA) under NEPA. According to the NEPA regulations, an EA needs to establish—among many other things—whether “cultural,” “historical,” or “scientific” resources are likely to be affected, and if so, how serious the effect will be. How can NEPA analysts most efficiently do this? The first problem is to establish what to consider. “Historic resources” as defined in the National Historic Preservation Act certainly need to be addressed, but the NEPA regulations refer separately to “cultural” and “scientific” resources; several federal legal requirements besides NEPA and the National Historic Preservation Act identify classes of other-than-historic cultural resources for consideration. The next problem is to identify cultural resources and decide if they may be affected. This requires doing something that makes some NEPA analysts uncomfortable—talking with concerned people. Finally, determining impact intensity seems simple, at least with historic resources, because the regulations implementing Section 106 of the National Historic Preservation Act discriminate clearly between effects that are “adverse” and those that are “not adverse.” However, equating “adverse effect” under Section 106 with “significant impact” under NEPA would have disastrous practical consequences. The other types of cultural resources are not burdened with the definitional oddities of Section 106, but measuring impact potential on each of them presents its own challenges. A defensible methodology is proposed—again, based on consultation with concerned parties.