On February 9, 2024, the U.S. Army Corps of Engineers (Corps) published a proposed rule that would amend the Corps permitting regulations to follow the National Historic Preservation Act (NHPA) implementing regulations as developed interpreted by the Advisory Council on Historic Preservation (ACHP). Specifically, the Corps proposes removing its own NHPA regulations, Appendix C from 33 CFR part 325, and replacing them with those promulgated by the ACHP at 36 CFR part 800. This change may lengthen the regulatory review process and expand the scope of the Corps’ NHPA review.
On Tuesday, January 23, 2024, the U.S. District Court for the Western District of Louisiana granted a preliminary injunction filed by the State of Louisiana seeking to halt the efforts of the Environmental Protection Agency (EPA) in imposing disparate impact-based mandates under Title VI of the Civil Rights Act in permitting decisions. The state contends that Title VI prohibits only intentional discrimination and, as a result, EPA’s disparate-impact regulations in 40 C.F.R. §§ 7.10-180 are an unlawful attempt by EPA to impose its environmental justice policy goals in official permitting decisions. According to Louisiana, EPA’s efforts to advance disparate impact-based mandates without explicit statutory authorization runs afoul of the major questions doctrine, which requires agencies to act in accordance with explicit congressional mandate for matters of major political or economic significance.