By Charise Johnson, Union of Concerned Scientists
From Hadrian’s Wall, to the Great Wall of China, the Wall of the North and many more , political walls have been built to discourage or control immigration, White Walkers, and ideologies at state borders since ancient times (though this is certainly not an endorsement). They have been built from stone, earth, wood, and steel, but one thing they all have in common—they are an ineffective strategy for border control, with other damaging side effects.
Still, the Department of Homeland Security (DHS) recently announced that they have waived 25 federal laws in order to expedite the construction of the US-Mexico border wall. Aside from being a humanitarian nightmare, this move stands to threaten the environment, wildlife, and culturally and historically significant public lands surrounding it—and the people whose lives and heritage depend upon these resources. The waiver will apply to the 20-mile vicinity east of the Santa Teresa, New Mexico port of entry, where existing vehicle barriers will be converted into a steel and concrete bollard wall.
Among the many statutes being set aside for construction are federal heavyweights like the National Environmental Policy Act (NEPA), the Magna Carta of federal environmental law, and the Endangered Species Act (ESA). The waiving of NEPA, ESA and other laws by the Secretary of Homeland Security, allowed under the REAL ID Act of 2005, is a huge power grab though not entirely unprecedented: the DHS has exercised the waiver requirement seven times prior to this, five times under President Bush from 2005-2008 and two times already in 2017. Waiving protective statutes, however, should be considered with caution and not wielded as a weapon for political gain. These laws were designed to ensure public health and environmental protection using science-based rules. Together, these safeguards have kept people safe and kept our nation beautiful. By exploiting waivers like this, the administration is throwing away the progress we’ve made in developing science-based laws for the public’s benefit.
For example, Santa Teresa, NM lies in the cultural and natural resource-rich Chihuahuan Desert near the Rio Grande. Disruptions from wall construction will put pressure on this delicate ecosystem, which is already threatened by climate change, agricultural expansion, and population growth. Waiving these acts shows a blatant disregard for public health and culturally important, irreplaceable sites and resources, and impinges on the rights and freedoms of tribal communities to preserve their heritage.
Here are all the different (evidence-based) laws that the wall will trample over:
- National Environmental Policy Act—This will allow the administration to forgo an environmental impact assessment on the project.
- Clean Water Act – This will allow the administration to escape regulation of pollutants discharged into US waters, deflecting requirements for water quality standards.
- Resource Conservation and Recovery Act—The monitoring and enforcement of solid and hazardous waste generation, transportation, treatment, storage, and disposal standards will be overlooked, meaning this safeguard will be laid to waste (pun intended).
- Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)—A complement to RCRA (above), CERCLA “authorizes the President to respond to releases of hazardous substances into the environment”. Waiving this statute takes the administration off the hook for reporting and cleaning up releases of hazardous substances during construction activities.
- Safe Drinking Water Act—This will remove requirements for monitoring contaminants in public water systems, as well as waiving the responsibility for notifying the public of contamination to the water systems.
- Clean Air Act—Enforcement of air emissions standards from stationary and mobile sources will not be required for the construction project, potentially allowing for unmitigated emissions of hazardous air pollutants.
- Noise Control Act—This will allow the administration to construct their wall without reducing excess noise pollution from transportation vehicles, equipment, and machinery.
- Endangered Species Act—This waiver will remove administration requirements to consider the special protections of imperiled species and ecosystems in the proposed construction site.
- Migratory Bird Treaty Act—This will allow for the harming, possession, purchase, sale, bartering, transport, export, and import of any migratory bird, nest, or eggs of migratory birds without the requirement of a federally issued permit.
- Migratory Bird Conservation Act—This will allow for the purchase or rental of land (or water) in migratory bird habitat without consultation and approval by the Migratory Bird Conservation Commission (MBCC).
- National Fish and Wildlife Act of 1956—Protections of fisheries and wildlife resources would be waived for the border wall construction. For example, collection of data on the availability and abundance of all wildlife (not just endangered) in the construction area would no longer be required.
- Fish and Wildlife Coordination Act—This would relieve the requirements for federal agencies to conduct assessments on effects of sewage, waste, and other pollutants on wildlife.
- Eagle Protection Act—This will allow for the harming, possession, purchase, sale, bartering, transport, export, and import of any bald (or golden) eagles, nest, or eggs of bald (or golden) eagles without the requirement of a federally issued permit.
- Farmland Protection Policy Act—This would allow the administration to construct their wall without requiring them to minimize impact to farmland (and forest land, pastureland, cropland, or other non-urban built-up land).
- Federal Land Policy and Management Act—This Act establishes the procedures whereby the Bureau of Land Management manages public lands to accommodate multiple uses (for example: livestock grazing, mineral extraction, logging, fishing, hunting, conservation of historical and cultural resources), which won’t need to be adhered to for border wall construction purposes.
Cultural preservation and national heritage
- National Historic Preservation Act—This will allow the administration to ignore the effects of federally funded projects on historic properties and artifacts.
- Archaeological Resources Protection Act—This will allow the administration to excavate or remove archeological resources on federal or tribal lands without a permit.
- Paleontological Resources Preservation Act—This will allow the administration to dismiss protections for non-renewable paleontological resources on federal lands.
- Federal Cave Resources Protection Act of 1988—The waiver will allow for a lack of specific statutory protections for significant caves that are “an invaluable and irreplaceable part of the nation’s natural heritage.”
- Archaeological and Historic Preservation Act—Also waived away are requirements for preservation of historical and archaeological data that might be lost or destroyed by federal projects or activities.
- Native American Graves Protection and Repatriation Act—This will allow for the administration to construct their wall without regard for Native American burial sites. Moreover, consultations with tribes when archaeological investigations encounter or discover Native American cultural items on federal or tribal lands will not be required.
- American Indian Religious Freedom Act—This will allow the administration to disregard protections of the religious cultural rights and practices of American Indian peoples, particularly by removing access to sacred sites and objects.
- Antiquities Act—This Act provides protection for any cultural or natural resource, generally. The waiver, much like that of the Archaeological Resources Protection Act, will remove the permitting requirement for excavation activities.
- Historic Sites, Buildings, and Antiquities Act—This will allow the administration to forego a survey of any historic and archaeologic sites, buildings, and objects existing at the site of construction.
Transparency in rulemaking
- Administrative Procedure Act—sets requirements for publishing notices of proposed and final rulemaking in the Federal Register, opportunities for public comment on proposed rulemaking, and requires a 30-day delayed effective date.
Actions like this will not only succeed in straining US relations with Mexico, but also open the door to further dismissal of important science-based protections, particularly in the name of immigration reform. In fact, President Trump announced last week in his State of the Union address his plan to update US infrastructure—which will surely include gutting environmental protections in favor of corporate polluters, and at the expense of resources vital to nearby communities and wildlife.