Many Americans are aghast at the demolition of the East Wing of the White House to accommodate the State Ballroom project in October. This calamity has reinforced just how weak our preservation law protections are for some of our most iconic Federal buildings. Gaps in preservation laws, the advisory or discretionary nature of many review bodies, and the politics of the moment have resulted in a demolition which no one was able or willing to stop. In 2014, the National Park Service Foundation Document observed that the White House’s “endurance for over 200 years reflects the stability of our nation.” Entering the second month of a Federal shutdown with part of the White House destroyed, that statement would perhaps only have been more apropos in 1814.
Since the demolition began, debate has swirled about what the legal requirements actually were in this unusual D.C. context. So, what did the Administration have the authority to do, and were any laws broken? Here’s a breakdown of key obligations:
National Historic Preservation Act (NHPA): For any Federal building except the White House, Supreme Court, and the Capitol and grounds, a proposal to demolish the building would have required compliance with the NHPA. However, Section 107 of the NHPA exempts these buildings from the entirety of the requirements of the Act, including the Section 106 requirement to consult and evaluate potential effects of any undertaking, and Section 110, which requires Federal agencies to survey and inventory historic properties on their lands.
Archaeological Resources Protection Act: ARPA requires a Federal permit before excavating or destroying archaeological resources on Federal land, and the NPS Foundation Document recognizes significant archaeological resources on White House grounds. The current ARPA regulations do not exempt the White House (unlike some other Federal properties such as the Smithsonian Institution). However, the regulations do not require a permit for “general earth-moving excavation” or other types of operations that might incidentally disturb archaeological sites – such as the East Wing demolition (43 CFR 7.5(b)(1)).
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However, the Administration’s sudden and secretive demolition of the East Wing likely violated other laws. There are strong arguments that the following were violated or bypassed:
National Environmental Policy Act: Federal agencies must produce a “detailed statement” (typically an Environmental Assessment or Environmental Impact Statement) for any major Federal action significantly affecting the quality of the human environment. NEPA contains a broad directive to preserve important historic, cultural, and natural aspects of our national heritage. At minimum, NEPA review should have evaluated environmental impacts of the planned demolition on the cultural landscape of the White House. White House planning documents (including NPS’s Foundation Document) list NEPA as applicable to the White House and its grounds, and NPS has previously completed Environmental Assessments for changes within President’s Park (e.g., 2011 security design modifications). Skipping NEPA cut the public out and short-circuited lawful disclosure and analysis of alternatives. We wonder whether the Administration would argue that no federal agency directed this major action, rather the President himself did, and that the funds for it were private, not public. Nonetheless, we would like to see how a court would respond to these arguments.
Executive Order 11593: EO 11593 directs federal agencies to steward cultural properties “in a spirit of stewardship and trusteeship” and to preserve, restore, and maintain historically significant sites, structures, and objects. It also calls for consultation with the Advisory Council on Historic Preservation (ACHP) and for timely documentation (HABS/HAER-quality records, including measured drawings, photos, and maps). While the White House Historical Association claims to have conducted 3D scanning prior to demolition, the overall process appears at odds with the EO’s stewardship and consultation directives. Realistically, the President could attempt to rescind or sidestep the EO – or argue that he is stewarding it by building a great big beautiful ballroom – but there are plenty of specific requirements in the EO that don’t appear to have been followed.
National Capitol Planning Commission Review: NCPC has long taken the position that its statutory authority covers new construction, not demolition, relying on repeated General Counsel opinions. Preservation lawyers have often disagreed with this conclusion and the decisions also emphasize that Federal building demolitions are considered under Section 106, which was not the case here. Even under NCPC’s own regulations, federal agencies are expected to submit proposals early, providing “plans, maps, and data” before preparing construction plans or committing to land acquisition (40 U.S.C. § 8722). If the White House had advanced ballroom construction plans far enough to require the East Wing’s removal, failing to consult NCPC early likely violated these process requirements. While NCPC review is ultimately advisory, it would have made the proposal public and opened space for pressure or litigation that could have slowed or altered the outcome.
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The 2000 Comprehensive Planning Document for the White House concluded that the building and its grounds “are a public trust, important symbols of our nation’s heritage,” whose preservation “must be ensured by prudent and adequate planning and by sensitive design.” The White House and President’s Park is listed as a National Historic Landmark, among the highest recognitions our preservation program confers. The National Park Service, which has ultimate oversight over many programs of the NHPA, is also responsible for historic preservation, major maintenance, and construction in the historic portion of the White House. In theory, the White House should be among the most protected buildings in the nation. However, a perennial challenge for preservation laws is whether the enforcement mechanisms are strong enough to deter violations and whether the entities capable of enforcing those laws will take action. As the last week has shown, under these conditions it could all be mowed down in just a week or two.
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What’s next and how can you help?
- Preservation attorneys should join the National Trust for Historic Preservation’s National Preservation Lawyers Network to be activated in similar potential cases where historic buildings and preservation principles are at risk.
- Check out the November 7th Society for Architectural History’s free webinar Managing Change: Preservation and New Additions for Historic Government Buildings for more details on White House historic preservation requirements.
- If you are seeing cases of historic preservation damage or disturbance and are wondering about legal options, you can reach out via Signal at marionchp.106 or via email. Follow us on LinkedIn and Facebook for real-time updates, and learn more on our Section 106 war room page.