State Environmental Protection Acts

In addition to state historic preservation acts, a number of states also have enacted environmental review statutes. As with the National Environmental Policy Act (NEPA), these statutes require state agencies (and sometimes local governments) to take into account the impact of their actions on the environment. Like NEPA, the "environment" includes historic and archeological resources. Section 21084.1 of the California Public Resources Code, for example, establishes three categories of historic resources subject to review under its California Environmental Quality Act (CEQA).

In contrast to NEPA, however, many state statutes also afford some level of substantive protection for environmental/historic resources. The California Environmental Quality Act (CEQA), for example, requires state agencies and local governments to consider the impact of their actions on the environment, including historic and archeological resources, and to adopt feasible mitigation measures or feasible alternatives for projects that would otherwise cause significant adverse impact. Similarly, the New York State Environmental Quality Review Act (SEQRA) requires state and local governments to propose, in their environmental impact statements, "mitigation measures...to "minimize the environmental impact."

The value of these laws lies in their enforcement capabilities. Preservationists can use these laws to ensure that preservation of historic resources is given full consideration by state agencies. Under some laws, an agency may be required to show that there is no prudent or feasible alternative to harming the resource before proceeding.

The Minnesota Environmental Resources Act (MERA) is illustrative. MERA establishes a "civil remedy" to "protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction." Any person "residing within the state; the attorney general; any political subdivision of the state; any instrumentality or agency of the state or of a political subdivision thereof; or any partnership, corporation, association, organization, or other entity having shareholders, members, partners or employees residing within the state may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction..."

As with most environmental protection laws, MERA defines "natural resources" to include "historical resources" and the phrase ""pollution, impairment or destruction" is broadly defined to include "conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materially adversely affect the environment..."

To succeed under MERA, a plaintiff must establish that an agency's conduct is likely to impair or destroy a historic resource. Once that showing is made, the agency must, by way of an affirmative defense, may rebut that showing by submitting evidence to the contrary or, by way of an affirmative defense, show "that there is no feasible and prudent alternative and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its [historic resources]." Moreover, economic considerations alone shall not constitute a defense hereunder.

Although similar to state historic preservation statutes, environmental protection acts are often broader in scope in that they protect against a wider range of impacts, such as air pollution and traffic, and generally protect archeological as well as historic resources. Even more importantly, some state environmental acts, including both CEQA and SEQRA apply to local government actions and thus require environmental reviews for a wide range of municipal actions, including zoning changes that could potentially affect historic resources. For example, CEQA was used in California to enjoin a ballot initiative process to de-designate 29 historic properties without first performing an environmental analysis. See Friends of Sierra Madre v. City of Sierra Madre (Cal. 2001).