Conference Examines Litigation Trends Shaping Preservation Law in the Nation's Capital

Conference Examines Litigation Trends Shaping Preservation Law in the Nation's Capital

October 23, 2026

By John Murph

More than 230 people attended this year's National Preservation Law Conference, where the recurring sentiment was that the United States has reached an "existential" moment regarding the preservation of its historic spaces, buildings, and landmarks.

Held on October 19 at the D.C. Bar headquarters, the conference (which was also offered virtually) was co-presented by the Bar's CLE Program and the National Trust for Historic Preservation. The daylong event coincided with the 60th anniversary of the National Historic Preservation Act (NHPA), which protects important historical, architectural, and archaeological sites across the country.

Much of the conversation centered on recent proposals and actions altering the landscape of Washington, D.C., including the demolition of the White House's East Wing to construct a ballroom, the renaming of the John F. Kennedy Center for the Performing Arts, the renovation of the Lincoln Memorial Reflecting Pool, the plan to construct a 250-foot tall Triumphal Arch near Arlington National Cemetery, and the removal of trees to renovate the East Potomac Golf Links.

"It is not an exaggeration to say that this moment is existential for our field, for the communities we serve, and for generations to come," said Brent Leggs, president and CEO of the National Trust for Historic Preservation, during his opening remarks. "Once, we looked to the federal government as a foundational partner in the preservation of the American story. We had a shared, nonpartisan understanding, even if from different sides of the aisle or cultural context, that saving our historical record matters. But as the government divests from this work, it is up to us to take up this charge in earnest."

Leggs noted that the Advisory Council on Historic Preservation has been advancing proposals to rewrite the regulations implementing Section 106 of the NHPA, which requires federal agencies to evaluate the effects of constructing, funding, or approving projects that may affect historic properties listed in or eligible for the National Register of Historic Places. "If implemented, these new rules would dramatically diminish the current legal protections for historic sites and public lands across the country," Leggs said.

"These regulatory and statutory changes are not the only signal for changing the landscape [of] our work across the country," said Ross Bradford, the National Trust's acting general counsel and chief legal officer. "Federal agencies have accelerated project timelines, narrowed opportunities for consultation, and in some cases, stepped back [from] meaningful engagement altogether. This rapidly changing landscape is especially important."

Tad Heuer, a partner at Boston-based Foley Hoag, delivered the conference's keynote address. Heuer's firm represented the National Trust for Historic Preservation in its lawsuit challenging the construction of the ballroom at the White House. The U.S. District Court for the District of Columbia granted preliminary injunction in August 2026 to halt construction.

Heuer, paraphrasing some of the sentiments from the favorable decision, said: "If you had the standing theory that the defendants contended, you could raze the Statue of Liberty … install a billboard on Mount Rushmore, or bulldoze the White House and build a skyscraper, and no one could stop [you]," he said. "So, the court clearly didn't believe that [the federal government] was correct."

However, the U.S. Supreme Court lifted the injunction weeks later, allowing the construction to continue temporarily.

Foley Hoag, joined by two other firms, also represented a coalition of eight cultural heritage and architectural organizations in their suit seeking to require the Trump administration to comply with historic preservation laws and secure congressional authorization before implementing plans to further alter the Kennedy Center.

"The issues that we are going to be looking at, and ones that we should think about, are what is a sufficient historic preservation injury? What does that now mean?" Heuer said. "Now, in the ballroom case, we're dealing with a demolished building, so it doesn't speak to buildings that are still standing. The places that still exist are going to be easier to defend than the ones that have been demolished."

To argue for the preservation of historic landmarks and buildings is to view them beyond aesthetics, Heuer said. "It's important for advocates for preservation to be very forceful and say that if there's going to be an injunction, [it] needs to mean something," Heuer said. "Will courts recognize that preservation cases can't be unripe until they're removed … that it can't be a scenario where it is unripe until the wrecking ball swings backwards, but it's moving once the wrecking ball is still built? It can't be that I have 18 seconds to bring a lawsuit," he added.

It is also important for preservationists to point out the economic benefits of protecting historic sites and the environmental waste concerns that arise when demolishing them, according to Heuer. "I do think, on a note of optimism, that these projects can become what Grand Central [Terminal in New York City] was for us 50 years ago," Heuer said. "Preservation now has a much higher profile. People are talking about national historic preservation in ways that they haven't before. These conversations are easier to have now because people have a context for it, and they understand the importance of preservation - not just at the macro level but at the micro level."